IMPOSE LEGAL LIMITS TO PRESERVE FREEDOMS

4 min read

Legal reform is now bogged down in the clear perception that what’s at stake is only a battle between special interests — tort reformers (mainly corporations and doctors) against trial lawyers.

What’s really at stake, however, is far more important — the health and vitality of common institutions such as schools and hospitals and, ultimately, the fabric of a free society. When anyone can sue for almost anything, the effect is to diminish everyone’s freedom. In America today, because of legal fear, teachers no longer feel free to place their arm around a crying child.

Part of the blame for the stalemate lies with the tort reformers. By proposing rigid reforms that put arbitrary limits on all claims, even the meritorious ones, it is easy to cast the reforms as anti-consumer. The phrase “tort reform” has now become synonymous with protecting selfish corporate interests. There are also, of course, powerful special interests on the other side — greedy trial lawyers who profit by the unpredictability of the current system.

The main cause of the stalemate, however, is that reformers have not challenged the underlying premise — that there’s a right to take any type of claim to a jury. All the trial lawyers have to do is invoke “the right to sue.” Wrapping themselves in the stars and stripes, they extol the venerable jury — as Sen. John Edwards (D-N.C.) recently did in Newsweek — as “democracy in action.”

Reformers find themselves set back on their heels, reduced to apologizing and saying that they only want to curb the worst abuses. But what reform can ever justify taking away someone else’s rights? Industry has offered up over $120 billion to try to stop the hemorrhaging from asbestos claims, but now finds itself stymied by the “rights” of workers who suffer no illness to sue for whatever they want because of possible exposure. Meanwhile, more than 60,000 Americans have lost their jobs, and investors — mainly pension funds of working Americans — have lost several hundred billion dollars. What about their rights?

It turns out that the main argument against legal reform is based on a false premise.

Justice is not supposed to be “democracy in action,” where every case is decided by a jury plebiscite, tolerating wildly inconsistent verdicts for the same conduct. Justice is intended to be rendered by the rule of law, which requires judicial rulings upon which citizens can rely as guides for action. The principal role of the jury in a civil case is not to decide standards of care but to decide disputed issues of fact, such as who is telling the truth.

What’s missing in American justice today is precisely what law is supposed to provide — deliberate choices of who can sue for what. Only when legislatures and judges make these deliberate choices will people know where they stand. Law is the foundation of freedom because by providing guideposts of right or wrong, it defines the boundaries of free action and movement. Justice Oliver Wendell Holmes Jr. famously defined law as the “prophesies of what courts will do.” Today in America, no one has any idea what a court will do.

Congress appears to labor under the misperception that limiting any claim is always an infringement of freedom, and only in extreme circumstances should it limit someone’s so-called right to sue. As Philip Howard explains in The Collapse of the Good News Etc, suing is not an act of freedom — suing is a use of state power against another private citizen. It’s like being indicted by the prosecutor, except the indictment is for money. Letting any self-interested person sue for a meritless claim, or a claim that is contrary to public interest, is in itself an abridgement of freedom.

When legal disputes rise to a level of national importance, such as how to compensate the victims of asbestos or restoring order to healthcare, it is precisely the responsibility of Congress to make the judgments of who can sue for what. By not making deliberate choices on matters affecting the broad public interest, Congress is clearly leaving that choice to self-interested people. When class action lawyer Dickie Scruggs was asked whether he was trying to make national social policy, he reportedly laughed and replied, “Someone’s got to do it.”

The harm caused by America’s unreliable legal system is not just the industry-ruining class actions or the occasional bizarre verdicts in personal injury cases. The main harm is that Americans no longer trust our system of justice. They go through the day looking over their shoulders instead of doing what they know is right.

Doctors squander billions in unnecessary tests. Jungle gyms and other athletic equipment are removed from playgrounds. Even seesaws have disappeared.

Teachers, worn down by legal threats, don’t dare hug a child and have almost given up trying to maintain order in the classroom.

Congress does not honor the rule of law by refusing to decide the boundaries of legal claims. Instead, it abdicates its responsibility to balance the interests of competing demands in our society and lets the law — supposedly the foundation of our freedoms — become a blunt tool for indiscriminate legal threats and self-interest. It is the responsibility of Congress to restore order to what is now a free-for-all.

Bell, former U.S attorney general, and Simpson, former Republican U.S. senator from Wyoming, are advisory board members of Good News Etc.

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