The Journal Editorial Report | August 5, 2005 | PBS
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briefing and opinion
August 5, 2005

THE COLLAPSE OF THE COMMON GOOD

THE COLLAPSE OF THE COMMON GOOD?In his book THE COLLAPSE OF THE COMMON GOOD, Philip K. Howard argues that our sue-for-anything culture has the unintended effect of eroding everyone's freedom. People no longer trust that the legal system will support them when making reasonable choices. Legal fear replaces freedom. The following are excerpts from Howard's book.

Is Being Sued the Price of Freedom?

Americans today accept that being sued is the price of freedom, and that diving for cover is the natural response to reasonable daily choices. Our faith in individual rights keeps us from pausing even to question this conception of justice. But should individual rights include the right to go to court over a sandbox disagreement involving three-year-olds, or to milk the system whenever there's a freak accident, or to scare towns and school systems out of seesaws and peanut butter? The idea of individual rights derives its moral force from the rhetoric of liberty. But is this what our founders had in mind when they organized a society around the freedom of each individual?

Actually, no. Our founding fathers would be shocked. There is no "right" to bring claims for whatever you want against someone else.

Constitution
The Constitution
Suing is a use of state power. A lawsuit seeks to use government's compulsory powers to coerce someone else to do something. Asserting individual rights sounds benign, like praying in the church or synagogue of your choice. Sticking a legal gun in someone's ribs, however, is not a feature of what our founders intended as individual rights. The point of freedom is almost exactly the opposite: We can live our lives without being cowed by use of legal power. The individual rights our founders gave us were defensive, to protect our liberty. Liberty, we somehow forgot, does not include taking away someone else's liberty.

We assume justice is neutral. But it doesn't feel neutral. How well would you sleep at night if you were sued for, say, $100,000 when a child falls off your swing and breaks his leg? Suing is not a neutral event any more than being indicted for a crime is a neutral event. Both involve the risk, coming down to that fateful verdict by a jury picked at random, that the power of the state will compel a person to do something. Putting someone at risk, even if the claim is weak or ridiculous, involves the exercise of state power over him.

Courts are not supposed to be commercial establishments where, for the price of a lawyer, anyone can buy a chance at a raffle. Courts supposedly represent the wisdom of law, overseeing when those powers can be used against others in a free society. There's no right to sue except as the state permits.

A Culture of Self Interest and Fear

Chief Justice Warren Burger
Chief Justice Warren Burger noted a "litigation neurosis" developing "in otherwise normal, well adjusted people."
A schizophrenic strain has crept into the society, with people edging around the baseboards, looking this way and that before doing anything in the common realm, but then, when they can, aggressively using law to gain a personal advantage. There's a "litigation neurosis," Chief Justice Warren Burger noted almost 20 years ago, developing "in otherwise normal, well adjusted people." Like savages, rather than citizens of a great civilization, we pounce when there's an opening and cower in our caves the rest of the time.

Americans are constantly told that justice purged of personal values is an essential condition of a diverse society, just part of a social structure that must accommodate different interests and values. We trudge along like self-flagellants repeating the mantra, "Who am I to judge?" But most Americans probably share basic values of social interaction, like not making unreasonable demands and being considerate of others. Perhaps the common mores of decency and proportion have eroded not because of diversity but because successive generations have learned what they can get away with. If people see others getting away with selfish conduct, they become cynical, and some become selfish themselves. We keep bending over backwards to accommodate selfish and antisocial conduct, and then wonder why our social fabric is disintegrating.

Lawsuits have become a Vehicle for Extortion

Lincoln
Lincoln told colleagues to "discourage litigation."
What kind of justice system is it that allows someone to make up an amount of money to demand? Is that a fact to be "found" by a jury? It doesn't even qualify as a value judgment, which at least is a conclusion based on facts. Damages claimed today are completely arbitrary. Just stick your finger in the air and threaten someone with any number that comes to mind.

I wonder if judges ever ask themselves why it is that damage claims have escalated to a level where they are like a parody of a dysfunctional system of justice. The answer couldn't be more obvious. Judges sit on their hands and tolerate claims that make lotteries seem like small change. The reason people bring huge claims is not hard to divine: It's a form of extortion. Why else sue for such ridiculous amounts? Being sued for, say, $5 million for a regular accident may not cause you to fold your hand, but the possibility of ruin never strays far from your consciousness. Most million-dollar claims end up settling for thousands or less. But not all. All that it takes is for a jury to get mad

Judges Must Draw the Line on Who Can Sue for What

supreme court
United States Supreme Court
For decades, judges have been criticized for being too activist. The federal court in Boston caused riots when it forced children to be bused hours away from home. The federal court in Kansas City took over the school system, spending almost $2 billion to little or no effect. At the same time, courts across the land were deferring to ludicrous claims by private individuals. This apparent judicial inconsistency is only superficial: both share a common foundation of abdicating to a system of individual rights. Anything in the name of individual fairness. Nothing for the common good.

Judicial activism has a bad name. Experience teaches us that judges should be loath to take over management of government. But judges have a responsibility on behalf of a free society to assert standards of reasonable behavior and to prevent the power of justice from being used by private parties as a form of extortion. That's their role in our constitutional system.

Excerpts from THE COLLAPSE OF COMMON GOOD by Philip K. Howard (Ballantine Books 2001)