THE BOUNDARIES OF LAWSUITS
In 2002 a volunteer for the Legion of Mary in Milwaukee, delivering a statue of the Virgin Mary to an ill parishioner, ran a red light and had an accident, causing an eighty-two-year-old man to become a quadriplegic. The victim sued the negligent driver. Then the victim, in search of a deep pocket, sued the Catholic Archdiocese of Milwaukee, claiming that it should be liable for the acts of volunteers of the Legion of Mary, a Catholic lay organization.
All sorts of legal red flags were raised by the claim against the church: Are nonprofit organizations liable when volunteers are driving their own cars—say, bringing a casserole to the church social, or going to coach Little League? The judge did not even address those questions. He just gave the claim to the jury. The jury then returned a verdict of $17 million against the archdiocese. More red flags. Money can’t bring back the quality of life for the elderly victim. The church didn’t try to hurt him; indeed, the church didn’t do anything. $17 million is a lot of dollar bills in the collection plate. What about all the good works that the church will be unable to provide? Where are the legal boundaries here?
With any tragedy, like paralysis, it couldn’t be easier to make an emotional argument for a huge verdict. How much would you take to be paralyzed? No amount is enough. But money won’t bring back the ability to walk either. Is the point of justice to make people really rich when they suffer misfortunes? No one is making these choices on behalf of society.
Lawsuits are an essential tool of a free country. They’re the mechanism by which right and wrong in particular disputes are sorted out. Lawsuits are also where citizens see the application of legal boundaries—whether swimming in a lake is a reasonable risk, for example. Lawsuits are where the rubber of social mores meets the legal road: Public choices on risk, standards of care, and exposure to damages ultimately get applied in the courtroom. What people are allowed to sue for is public policy.
How lawsuits are supposed to do this job, however, has received surprisingly little attention. Tort reformers have spent years trying to herd lawsuits into corrals that limit crazy verdicts, with success in some states. But tort reformers haven’t even attempted to deal with lawsuits as manifestations of public policy, or to question how lawsuits get argued and decided.
The orthodoxy of accident lawsuits today is that no one on behalf of broader society, at least no one in the courtroom, is authorized to draw the boundaries of lawsuits. That job is given to juries. Juries are generally sensible, but they don’t have the authority to act on behalf of the broader society. One jury can’t bind the next. Juries can’t write legal opinions drawing legal boundaries, or issue written rulings to guide behavior. Juries decide only at the conclusion of years of legal skirmishing, with no capacity to dismiss claims earlier or to put reasonable limits on claims and defenses. Juries just go thumbs up or down at the end of the particular case. The next case, on the same facts, may result in exactly the opposite verdict.
Without a deliberate legal policy of what’s a reasonable risk, or what are reasonable damages, lawsuits in America are limited mainly by the imagination of the lawyers. Damages are literally arbitrary. You may be wondering how the jury in the Milwaukee car accident came up with a verdict of seventeen million dollars. Here is part of the closing argument of the plaintiff’s lawyer:
[T]here’s not much worse than quadriplegia and being trapped in your body, having no freedom of movement, no ability to feed yourself, really no ability to do anything. . . . We learned about the bowel not working. . . . Then the other complications you heard about, the sores that were developed, one below the rectum which led to a lot of problems, then the sore on the leg which led to the amputation. . . . No right-thinking person would trade places with [the victim] for any amount of money, so how do you put a value on that, and yet that’s the assignment you’ve been given by the court. . . . [M]y suggestion to you for the past pain and suffering and disability is $5 million dollars. It may be low, it may be high. . . . I can imagine as jurors that you’d like to have . . . help. “Can’t the legislature or the courts or someone give us some guidance?” You don’t get that. You have to figure it out. And collectively I’m sure you’re up to the task. . . . [P]art of your responsibility is to determine a number [for pain and suffering] for the future; perhaps something in the range of 4 to 7 million dollars is fair. . . .
This type of emotional claim for pain and suffering—available in every human tragedy—has no connection to the concept of a fact, such as the actual monetary losses or costs of care. Just put your finger in the air and make something up, as the lawyer in Milwaukee candidly argues to the jury.
We’ve been taught that America has the fairest system of justice in the world. The courthouse door is open for anyone to claim almost anything. The judge, like a neutral referee, will make sure each side has its chance to argue and, after reading the legal principles to a jury, allows it to decide. The idea of the jury, a randomly picked group of citizens, is the embodiment of American fairness. It’s in the Constitution.
Former Senator John Edwards, a successful plaintiff’s lawyer, waxed eloquent about the virtues of this conception of justice in an essay in Newsweek entitled “Juries: Democracy in Action”: “The people who sit on juries are the same people who decide who the president should be.” Fairness in this conception is demonstrated by the absence of interference with the jury’s prerogative. This is what the trial lawyers mean when they invoke, in every other breath, “the right to sue.” No one can claim the deck was stacked when a jury makes the decision.
But there is another conception of justice. This other model focuses not just on fairness in the particular case but on preserving the freedom of everyone in society. Claims affect people not in the courtroom. What about the church’s willingness to encourage volunteers? The goal of justice in this conception is to maintain boundaries of law. “There is an important question of freedom at stake,” as the law lords held in the case of the paralyzed swimmer.
Predictability is the first value of this model; people need to know what they can be sued for. The rule of law—the very idea of the rule of law—is that it is supposed to set and apply standards of conduct consistently. An “essential element of the concept of justice,” legal philosopher H. L. A. Hart observed, “is the principle of treating like cases alike.”
It is impossible to reconcile these two ideas of justice. Under the “democracy in action” conception, each jury decides a case as it sees fit, whatever the verdict in similar prior cases. This model not only tolerates, but arguably encourages, decisions that vary wildly from case to case. Fairness is defined largely by the neutrality of a jury, not by consistency among similar cases. Indeed, if fairness were an issue only for parties in a particular case, why not let the jury make the choice?
But lawsuits affect the freedom of people not in the courtroom as well as the particular parties. Is civil justice supposed to be “democracy in action”—a series of little elections in which standards of behavior are decided jury by jury—or is it supposed be rendered by the rule of law? The rule of law model requires written rulings by judges, not ad hoc verdicts by juries.
Americans like the idea of a jury. It’s easy to see the jury making decisions within legal boundaries. The problem is that no one is keeping claims and arguments within reasonable bounds. “An act is illegal,” Professor Donald Black once observed, “if it is vulnerable to legal action.” By that standard, in today’s ad hoc conception of justice, almost any act is potentially illegal. That’s why Americans no longer feel free in daily dealings.
THE ANATOMY OF LEGAL DISTRUST
In 2007 the story broke that a Washington, D.C., lawyer—actually an administrative law judge—had sued his dry cleaner for $54 million because it had allegedly lost a pair of his pants. He felt strongly that he had been wronged. “There is no case,” he argued, “that comes anywhere close to the outrageousness of the behavior of the defendants.” He calculated the damages on the basis of a District of Columbia $1500 consumer fraud penalty, multiplied by twelve alleged violations, multiplied by the 1,200 days he had been deprived of his pants, multiplied by the three owners. He then added $15,000 for the cost of a rental car every weekend to take his cleaning to a more reliable establishment, $542,000 for the value of the time he spent righting this wrong, and $500,000 for his “mental suffering, inconvenience and discomfort.”
The lawsuit was obviously absurd. It illustrates again an important truth about human nature—that angry people can go nuts. This in turn illustrates an important point about how to run a system of justice: We can’t trust people to be reasonable when they get involved in lawsuits.
What was most shocking about the case was not the idiotic claim, however, but that the case was allowed to go on for more than two years—complete with sworn testimony on how the cleaner maintained its laundry tickets and what it really meant by the sign that said “Satisfaction Guaranteed.” The judge expressed “significant concerns that the plaintiff is acting in bad faith” but, like most American judges, thought that his duty was to shepherd the case toward ultimate verdict after a full trial—in this case, a bench trial (i.e., without a jury) before another judge. So the fate of the defendants, a family of Korean immigrants working hard to make their way in the new country, hung in the balance until that fateful day. At the end of two years of discovery and legal wrangling, the judge trying the case had no apparent difficulty deciding that the claim was baseless.
Justice prevailed, some might say. That’s basically the argument of defenders of American justice: that common sense carries the day most of the time. That’s probably not the view of the dry cleaner after being dragged over the coals for two years by an obsessed person. The family spent more than $100,000 in legal fees, considered moving back to Korea, and ended up closing the store in question. An observer said they looked like they had suffered body blows, and the son’s wife said her mother-in-law had “lost four dress sizes” during the ordeal. Why, they wondered, should angry people be allowed to wield this power so abusively?
The system is hardly perfect, trial lawyers will admit, but in general American justice is about as good a system as anybody could hope for. There are not many good numbers on the fairness of American justice—some studies suggest that judges generally agree with juries. The area most studied is medical malpractice. Overall, including settlements, about 25 percent of medical malpractice payments are made on claims, without merit, according to a 2006 study at the Harvard School of Public Health. (The error rate in cases involving certain specialties, such as obstetrics, is higher.) The error works in the other direction as well—the same Harvard study found that 25 percent of meritorious claims got nothing. Defenders of the status quo use this study to argue that the “medical malpractice system works pretty well.”
Distrust of justice is not mainly a matter of the odds, however. It’s human nature, as already noted, to overreact to terrible risks. Certainly a 25 percent chance of losing a baseless case doesn’t inspire confidence—playing Russian roulette with one bullet in four chambers is not all that reassuring. But there’s something else about justice that is frightening. Justice doesn’t have the goal of being reasonable. Its main goal is to be neutral.
Encounters with American justice are a nightmare. Litigants live for years under a dark cloud of hyperbole and accusation. Plaintiffs sue for the moon almost every time—and why not? The leverage is enormous, like putting a legal gun in someone’s ribs. Lawyers for guilty defendants can do the same thing, making up whatever arguments will postpone the day of reckoning. What was most revealing in the Harvard malpractice study was how inefficient the system is. The average time to settlement for patients injured by error was an astounding five years. Legal and administrative expenses consumed 54 percent of the total cost. “It would be hard to design a more inefficient compensation system,” says Professor Michelle Mello, who helped lead the study, “or one which skewed incentives more away from candor and good practices.”
Neutral justice, American style, is a formula for exhaustion and fear, not trust. First you argue, then they argue, year after year, until . . . if you can last that long, the right result is reached, three-quarters of the time. This system, supposedly neutral, in fact tilts the scales in favor of whoever is in the wrong. Defendants can coerce an unfair settlement by dragging their feet, and plaintiffs can extort settlements by suing for ruinous damages irrespective of actual loss or fault.
In one medical malpractice lawsuit, described by Dr. Atul Gawande in Better, a dermatologist ordered a biopsy on a small growth and, when the results indicated malignancy, advised the patient to remove all surrounding skin. The patient resisted, got a second opinion and biopsy which showed no malignancy, and decided not to take the first doctor’s advice. Terminal cancer reappeared several years later. Before the patient died, she found a lawyer and sued the first doctor on the basis that, in a call with him after the second biopsy, he should have been more insistent. After seven years of legal battling, the doctor found himself on the witness stand being cross-examined on how many articles he had written (implying he wasn’t very good if he had not published) and being grilled on why he had not taken notes on the fateful call. The doctor prevailed. But like the Korean cleaners, he felt as if a chunk of his life had been stolen from him.
Americans don’t trust American justice anymore. In a 2005 poll only 16 percent of Americans said they would trust justice if someone brought a baseless claim against them. This distrust translates, more or less directly, into a loss of the sense of freedom. Americans become defensive in ordinary dealings—for example, 93 percent of Pennsylvania doctors admitted practicing defensive medicine. Nor is justice considered reliable to safeguard against misconduct—over 90 percent of Americans in the 2007 poll thought “that large corporations often get away with wrongdoing because they have the money to hire good lawyers and expert witnesses.” Justice is seen not as the foundation of freedom but as a tool for self-interest. The same 2007 poll also found that 89 percent of Americans see “an increasing tendency for Americans to threaten legal action and lawsuits when things go wrong.”
This pervasive distrust of justice, trial lawyers argue, is just the result of a calculated “scare campaign” by corporations. Bar associations call for “more creative ways to inform the public” about the “benefits of the jury system.” It is certainly accurate that absurd claims, however unusual, make the headlines. But the most visible promoters of scary justice are the plaintiffs’ lawyers themselves, barking through a megaphone of radio ads and billboards about huge rewards for common accidents. “Get the Cash That You Deserve. Over $100 Million Recovered for Our Clients.” “No It’s Not a Lottery. It’s Justice.”
How do we restore trust in justice? Tort reform hasn’t done the trick. Limiting noneconomic damages reduces the fear factor, but a doctor who has done nothing wrong can still be dragged through years of litigation and be held liable. Public trust in justice is not built on legal caps or a better understanding of the probabilities of being sued. Trust can be built only on commitment by justice always to try to keep claims within reasonable bounds. For justice to act as the foundation of freedom, citizens must believe that it has the goal of affirmatively protecting reasonableness—both protecting against unreasonable conduct and protecting against unreasonable claims.
THE CORROSION OF THE CULTURE
The tort reform debate has tended to focus on the fairness of justice. Back and forth the argument goes: Why should someone get $17 million from the Catholic Church because a volunteer ran the red light? Why not, how would you like to be paralyzed? But there’s no resolution—fairness is always in the eye of the beholder. That’s one of the reasons fairness requires an independent arbiter balancing different interests. That’s also why fairness is not the best way of engaging debate on issues of policy. The effects of unreliable justice on freedom, on the other hand, can be seen just by watching how people behave.
Funny things happen when people don’t trust justice. They don’t act sensibly. They start walking on eggshells. Legal self-consciousness creates a kind of upside-down world. Swimming, as the law lords predicted, becomes an activity to be avoided, not enjoyed. A school in Brooklyn had its beach day near Coney Island—except that the children were prohibited from going in the ocean. When hidden hazards do exist, the legal incentive pushes people to do nothing; who knows what will be enough? For years the town of Long Beach, New Jersey, had signs warning of rip tides in the area—a sensible precaution. In 2005 it removed them because, according to the town attorney, “having no signs . . . reduces the risk of being sued.” He said that the town might be liable if “a jury found its signs to be inadequate.” (Public outcry in Long Beach has now forced the town to engage in a rip tide awareness campaign.)
Nowhere is legal fear more corrosive than in American health care. The felt need to answer to the lowest common denominator has transformed health care delivery, with only moderate overstatement, into an exercise of self-protection.
Quality of care has suffered because of the chilling of professional interaction. Careless errors aren’t caught because doctors and nurses don’t speak up—asking “Are you sure that’s the right prescription?” might result in legal responsibility. The Joint Commission on Accreditation reported that distrust of justice “keeps us from doing things that we, as good professionals, would naturally do.” The logic of legal fear, as with warnings of rip tides in Long Beach, is that it’s safer to say nothing—that way you don’t take legal responsibility. Legal fear also affects whether a patient gets care—high-risk procedures may be the only way to save a life, but doctors can’t be blamed if they do nothing.
Health care costs are spiraling out of control—more than $7,000 per person, compared with less than $4,000 in most Western European countries—and rising annually at unsustainable levels. Part of the difference is that America buys more heroic care. We also pay our doctors more. But some significant amount is waste. Unnecessary care—motivated by legal fear, greed, and ineffective variations in care—accounts for upwards of 30 percent of the total bill. Defensiveness seeps into daily decisions like an acid, corroding professional instincts of what’s right. Hospitals are a slow-motion zone of forms and caution. How much is useful, and how much is wasteful? No one knows. End-of-life care is a zone of paranoia, where some nursing homes send ninety-year-olds in their last days to intensive care units to be poked with needles and die listening to the alarms of beeping medical machinery, instead of peacefully in the company of loved ones. But nursing homes can’t be blamed if Grandpa dies on someone else’s watch.
Law has become an invisible shield between doctor and patient. The most mundane visits are affected. A pediatrician friend in Charlotte, North Carolina, described to me how his good judgment has been undermined by the need to justify his decisions. “I used to see a healthy child and write a couple of lines on the patient chart. Now I write twenty or thirty lines, detailing everything I see that indicates the child is normal. Does this make sense? No, it’s counterproductive to someone who actually needs to go back through the charts at some point. I’m also less open and spontaneous, particularly with patients I don’t know well. I don’t like feeling this way, and it takes some of the joy out of practice, but I feel I need to protect myself.”
People who are sick need empathy, and hope. They need to trust their doctors, not feel doctors are protecting themselves. When tragedy occurs, or mistakes happen, patients need honesty, not stonewalling. Instead, when errors are made, doctors don’t admit them, or apologize, for fear of exacerbating liability. One mother whose son had died in routine surgery at Mass General called me in frustration because she couldn’t get anyone there to talk with her about what had happened. “Do I have to sue,” she asked, “just to learn the truth?”
I had minor knee surgery a couple of years ago, opening a small personal window into our health care culture. The sea of forms and waivers was astounding. Does anyone ever read them? Another requirement was to have a preoperative examination. I’m sure that makes sense in many situations, but mine was a forty-five-minute procedure using local anesthesia, the knee equivalent of having dental work. When I asked what was involved in this preoperative examination, I learned that it was the full megillah of blood work, X-rays, electrocardiograms—more than $1,000 worth. It so happened that I had all those tests just the month before in my annual checkup. I offered to send over the results, saving my insurer the money and saving me the harmful zaps from the X-ray. No, the hospital said: no preop, no surgery. I offered to sign a formal waiver releasing the hospital from any liability from my failure to update my physical. But the hospital didn’t trust justice to honor a waiver by a consenting adult. It was hopeless.
Restoring health to American health care requires many changes in order to better deliver services and align incentives; many of these choices involve allocating expensive resources, such as MRIs, to situations where they are most needed. None of those choices will be made sensibly, at least not systemwide, until there is a system of justice that doctors trust to defend their reasonable judgments.
RETHINKING THE CIVIL JURY
Like the rest of us, judges have witnessed this expansion of legal exposure, and many don’t like it. But they feel powerless to do anything. Making a legal ruling based on the broader social effects of a lawsuit—say, whether charities are liable for their volunteers’ driving—is inconceivable to most judges. Judges will sometimes reduce an absurd amount of damages (though not the $17 million verdict against the Catholic Archdiocese in Milwaukee), but almost never limit the claim in advance. A few years ago, when debating the judge in the McDonald’s hot-coffee case, I suggested that the reasonableness of selling hot coffee from a takeout window should be decided as a matter of law. His response perfectly captured current judicial orthodoxy: “Who am I to judge?”
Judicial deference is ingrained so deeply that most judges can’t conceive of having the power to keep claims reasonable. Even a whisper in the direction, they know, will elicit an explosion from the trial lawyers: You’re taking away the right to sue. Judges, lawyers, even tort reformers, shrivel up at this point—it’s like being accused of stealing. The charge itself is enough to end the discussion.
The rhetoric about “the right to sue” is itself misleading, just another example of how the trial lawyers ply their trade. Access to courts is indeed a core value. The courthouse door should never be barred, even for frivolous claims. After all, somebody has to decide what’s frivolous. But who decides? When leaning on their horn about “the right to sue,” the trial lawyers are deliberately confusing the concept of universal access to the court (which no one threatens), with a presumption that the jury always decides who wins and who loses. The choice, they tell us, is between the jury or a stacked deck. “I trust the jury system and I trust the American people and their common sense,” as billionaire trial lawyer Richard Scruggs put it, “far more than the National Association of Manufacturers to protect the American public.”
Last I looked, judges’ salaries aren’t paid by the National Association of Manufacturers, although the financing of judicial elections has become pretty unseemly. Scruggs himself has pleaded guilty to trying to bribe a judge. But the need to restore respect to the state judicial selection process does not reduce the need to reestablish the rule of law. When it comes to deciding who sets boundaries, judge or jury, America doesn’t have a choice—juries can’t draw legal boundaries. Judges must take this responsibility, or else there’s no one in the courtroom doing that job.
Excuse me, the retort comes, what about the Constitution? Doesn’t the Constitution require juries to decide who wins? Actually no, at least not if the lawsuit turns on a conclusion that should be decided as a matter of law. Society needs to know, for example, whether a seesaw is a reasonable risk. That requires a legal ruling by the judge. Criminal cases are different. Under the Sixth Amendment only the jury can convict you of a crime. The jury is our protection against power-crazed prosecutors. But for private lawsuits (known as civil cases), the Seventh Amendment explicitly incorporates common law practice, which divides the responsibility between judge and jury. Juries decide disputed facts—who is telling the truth, say, or who ran the red light. Judges interpret and apply the law—deciding which are valid claims as a matter of law.
The language of the Seventh Amendment is hardly a model of clarity: “In suits at common law . . . , the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined . . . , than according to the rules of the common law.” But the division of responsibility between judges deciding law and juries deciding facts is well settled, at least in theory. In the debates over ratification of the Constitution, the future chief justice John Marshall stated categorically: “What is the object of a jury trial? To inform the Court of the facts.”
Judges today give lip service to the distinction between fact and law, but as one scholar put it, there’s “a strong tendency to let all issues go to the jury without discriminating among them.” Letting the jury decide is easy; it “reduces judicial effort and the risk of reversal.” For most of our legal history this practice had no obvious impact on public trust. Prior to the 1960s judges didn’t need to keep tight reins on hot-coffee claims or $54 million suits over lost pants. There weren’t any claims like these.
In the 1960s legal theorists reconceived civil justice to be a neutral process. In what became known as “the neutral process movement,” judges should not only be impartial, but should avoid asserting values of right and wrong altogether. Who knows what bias lurks in the heart of the judge? Appellate courts admonished judges not to dismiss any claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to recover.” Since most cases involve applying standards of reasonableness to the facts at hand—what are known as mixed questions of law and fact—it is easy to pass the buck to the jury.
At first slowly, then more rapidly, the word got out that you could argue almost anything in these “neutral process” courts. In the early 1970s a $1 million verdict made the headlines: Someone got rich from an accident! Today it would have to be $100 million to get noticed. Trial lawyers, congregating at the intersection of human tragedy and human greed, have convinced the public that any tragedy is a reason to get rich. The average size of jury verdicts in accident cases doubled from 1996 to 2003—to more than $1.2 million.
I can see the brickbats coming my way: “The Constitution gives us the right to trial by jury. You’re taking away our rights. Suing for anything is part of what it means to live in a free country.”
Let’s go back to first principles. The rights our founders gave us are rights against state power. “Congress shall make no law . . . abridging freedom of speech.” “The right of the people to be secure in their persons, houses, papers, and effects . . . shall not be violated.” “No person shall be deprived of life, liberty, or property, without due process of law.” The Constitution guarantees our freedom mainly by protecting us against coercive state power.
A private lawsuit, by contrast, is a use of the state’s coercive power against another private party. It’s just like indicting someone; it’s just an indictment for money. But lawsuits don’t have the safeguards that apply to prosecutors—no grand jury, no clearly defined criminal statutes. We would never tolerate a prosecutor bringing a baseless charge. Nor would we allow a prosecutor to threaten the death penalty for a misdemeanor. That would be a clear abuse of state power. Why, then, do we tolerate allowing self-interested private parties to invoke legal power unilaterally to threaten the livelihoods of other free citizens?
Letting anyone sue for almost anything does not honor our rights. It turns our rights upside down—law becomes the weapon of state power instead of our protection against state power. Worse, unlike a criminal prosecution, state power is being used for personal gain. People like the lost-pants man get it in their heads that getting rich at the expense of someone else is somehow virtuous. Trial lawyers pretend that they’re Robin Hood, with the modern twist that they keep much of the money for themselves. This modern approach to lawsuits is not about justice—it’s about greed in the clothing of justice.
Justice is certainly available today for valid grievances—this is a good thing, which must be preserved. But even those remedies are impaired by the hands-off judicial attitude that tolerates nearly endless foot-dragging by guilty defendants. Modern justice is also available, however, for extortion. That’s the source of the legal fear that undermines our freedom. That’s why legislatures and judges must draw legal boundaries.
TAKING BACK CONTROL OF THE COURTROOM
In 2002 Federal Judge Janis Jack, in Corpus Christi, Texas, found herself presiding over almost 10,000 claims on behalf of alleged victims of silicosis. Silicosis is a terrible disease, caused by intense exposure to airborne particles of sand and rock. Slivers of quartz lodge in the lungs and cause slow suffocation. In what is known as the “Hawk’s Nest incident,” nearly 600 workers died of silicosis after drilling through almost pure silica as part of a Tennessee Valley Authority project in the 1930s. The symptoms of silicosis are similar to those of asbestosis, except that the X-ray profile is very different, with small, rounded opacities in the upper or middle zones of the lung instead of irregular linear opacities at the base and periphery of the lung in cases of asbestosis. Silicosis is also far rarer—causing about 2 percent as many deaths as from asbestos. In the 1990s a group of lawyers who had represented asbestos clients started bringing lawsuits on behalf of people who claimed they had silicosis. Many of these cases were consolidated before Judge Jack.
It would be impossible to try 10,000 cases in several lifetimes. The usual course of these mass tort lawsuits is that a few cases get tried, and then the rest settle. Judges basically see their role as referees, and look forward to the day when all the paperwork ends. Judge Jack did something almost unique in the annals of modern litigation. She took it upon herself to investigate the underlying validity of the claims. Judge Jack spent more than a year researching the science of silicosis and reviewing the actual files of the claimants.
What Judge Jack found was that the claims were a sham. The litigation had basically been mass-produced by lawyers who advertised for potential plaintiffs, invited them to a mobile X-ray truck, and then paid doctors to sign their names on preprinted diagnoses. The details of the fraud, laid out in Judge Jack’s 250-page opinion, were shocking: One doctor, responsible for more than 1,200 plaintiffs’ diagnoses, made all his diagnostic evaluations in less than seventy-two hours. Two-thirds of the claimants had previously filed asbestos claims, surprising in that it would be a clinical rarity for a patient to have both silicosis and asbestosis.
What shocked the legal community, however, were not the details of this scheme—anyone associated with asbestos litigation has seen a similar scam in action for years, in which an estimated 90 percent of claims were bogus—but that a judge actually took the authority to declare that the emperor had no clothes. Until her decision, judges overseeing several hundred thousand cases had basically taken the position that the plaintiffs had the right to submit these bogus claims to the jury.
Judge Jack was emboldened by a 1993 decision by the Supreme Court, Daubert v. Merrell Dow, which holds that judges should rule on the validity of scientific experts; otherwise juries are swayed by “junk science.” Judge Jack took Daubert one step farther and ruled on the validity of the claims themselves.
America needs a Judge Jack in every courtroom, not only reviewing science but drawing boundaries of reasonable risk and reasonable claims. Judges in America have never done that, at least not in personal injury law, because before the 1960s, as noted, there wasn’t much of a need to. People didn’t sue over a teacher grabbing hold of an unruly student, or over losing a pair of pants. Today social norms have been disrupted. No one knows what someone else may claim. Judges have to help restore order to this free-for-all.
But on what basis are judges supposed to decide? To most judges, the idea of looking inside themselves to decide what’s reasonable is almost inconceivable. Judges are stuck in the rut of objective justification, avoiding any ruling they can’t prove by external criteria. NYU Professor Arthur Miller, criticizing use of summary rulings by judges, is horrified at the notion of “result-oriented” decisions that, in the name of legal policy, might draw on the judge’s own values: “Judges are human, and their personal sense of whether a plaintiff’s claim seems ‘implausible’ can subconsciously infiltrate even the most careful analysis.” Professor Miller basically has it backward. Judges are supposed to get rid of claims that seem implausible. The core assumption of modern orthodoxy—that judges should avoid value judgments—is what keeps justice from being trustworthy.
Judges must affirmatively protect reasonable social norms of right and wrong. In the $54 million lost-pants lawsuit, the judge should have called in the parties and said something like: “Maybe you have a claim for a few hundred dollars in small claims court, but you have no right to use justice as a tool of extortion. Case dismissed, without prejudice to refiling elsewhere with an appropriate claim.” But the judge thought his role was just to preside over a neutral process, at one point saying he “didn’t want to belittle the case.” And so the lives of the Korean immigrants were turned upside down because, in the name of neutrality, the judge refused to do what everyone knew was right.
People go through the day relying on their reasonable instincts. They sense right and wrong, as they do with most criminal prohibitions. That same generalized understanding of right and wrong must hold true for all social interaction: how teachers deal with students, doctors with patients, supervisors with employees, and dry cleaners with their customers.
If justice is just a neutral process—with no effort by judges to rein in extreme claims or dubious defenses—then people know they can’t rely on their instincts of what’s reasonable. They become self-conscious and defensive in daily dealings. For them to feel free in daily interactions, legal boundaries must correspond with their reasonable sense of right and wrong. That requires judges to apply social norms when drawing boundaries of reasonable claims. “The first requirement of a sound body of law,” Justice Oliver Wendell Holmes, Jr., wrote, “is that it should correspond with the actual feelings and demands of the community.”
Judges must constantly draw on their values, acting as surrogates for society for what constitute reasonable claims. It is correct that a judge can never “eliminate altogether the personal measure of the interpreter,” as Justice Cardozo observed, but he went on to explain that society can’t function without a ruling by someone:
You may say there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere. . . .
The judge’s rulings are not supposed to be based on personal preferences. It’s “not what I believe to be right,” Justice Cardozo noted. “It is what I may reasonably believe that some other man of normal intellect and conscience might reasonably look upon as right.”
Many judges have argued to me that this is the job of legislatures. But hundreds of legislators can’t crowd into the courtroom in each case. Law is too complex to write a rule for every situation. Legal principles that guide social behavior are unavoidably general—for example, whether someone acted reasonably in the circumstances. Judges in the particular case must apply social norms to give meaning to those legal principles—for example, whether it is reasonable for citizens to bear the risk of playground accidents. The former president of the Israeli Supreme Court Aharon Barak refers to this role of the judge as “creat[ing] law within the framework of the law.”
I can feel the next objection practically bursting out of many of you. What about judicial activism? Conservatives have railed for years against the activist judges. Indeed, at the same time judges were letting claimants sue for almost anything, they were taking control of prisons and causing riots when they ordered children bussed to different neighborhoods. These judges felt just fine making rulings as a matter of law that effectively preempted the legislature. The judge gallops off on a white charger to fix the ills of society but in private disputes sits on his hands, letting people in his courtroom argue anything. How can we come to terms with this Jekyll and Hyde performance?
This schizophrenic judicial behavior reflects the philosophy of the 1960s, a preoccupation with the plight of the individual. While the judge trusts himself to interfere with democratic institutions on behalf of the individual, the same judge doesn’t trust himself to choose among competing individuals in the courtroom. Who is he to judge? The common thread is an active antagonism to authority. The school board isn’t doing a good job educating the students? The judge teams up with the plaintiff to take over the schools. Someone feels aggrieved? The judge lets the plaintiff sue for the moon. Leaning over backward for the alleged victim is the common thread in this otherwise inconsistent judicial philosophy.
The result, ironically, has been to victimize the entire society. Our institutions are immobilized by the competing demands. What about my rights? What about my rights? What about my rights? The growing cacophony, we see every day, demonstrates the growing misalignment of justice from the society around it.
Giving judges the responsibility of drawing boundaries of risks and rights is unavoidable. Only a judge—a human present in the courtroom—can make the distinctions based on particular context. The small-town doctor handling an emergency should be held to a different standard than a brain surgeon in New York. A teacher understands that he can’t haul off and slug a student. But the teacher also must be able to restrain a disruptive student without fear of a legal claim. Judges can draw these lines, consistent with past decisions. Juries can’t, because they’re not accountable for consistency. Statutes can’t, because they’re not able to evaluate the context. Judges must take responsibility to maintain the boundaries of what’s reasonable in the courtroom.
RESTORING LAW TO LAWSUITS
The block party in Bayonne, New Jersey, was a friendly, crowded affair, with kids running around and parents shooting the breeze. Then the accident occurred. A five-year-old riding around on his bicycle with training wheels bumped into a one-year-old, knocking her to the ground and sending her off to get some stitches. Next came the lawsuit: The parents of the one-year-old sued the parents of the five-year-old for not exercising better supervision. The case made its way up to the New Jersey Supreme Court, which ordered the claim to be dismissed. The law doesn’t require parents in these settings to defend against “honest errors.” Otherwise, the court observed, people might stop holding block parties. This case illustrates the first of three major changes needed to restore trust to justice.
1. Judges must draw boundaries of reasonableness as a matter of law. Giving judges the job of drawing legal boundaries is not a hard concept, at least in theory. The difficulty of this task is that after several decades of open floodgates, the boundaries have been washed away. Where would we start? One litmus test for interjecting a ruling of law is where a claim or defense might undermine reasonable activities of people not in the courtroom. If allowing a claim might result in lakes closing down, or playgrounds being stripped of fun equipment, or volunteers being barred from charities, then the judge should make a legal ruling defining the boundaries of such claims.
Deciding where to draw the lines is more difficult. Most judges would be happy to draw these boundaries as long as they could find the answer in a lawbook. Unfortunately, there is no book that says what’s reasonable in the circumstances. Moreover, social norms have become muddled as a result of the legal free-for-all in the last few decades. As suggested earlier, risk commissions are needed to establish norms in areas of confusion, such as children’s play. One thing judges can do immediately is stop abusive and extreme claims, such as the $54 million lawsuit by the lost-pants man. Just knowing that judges see their job as keeping claims and defenses reasonable will be an important boost to our daily freedom. For the first time in our lives, justice will be committed to setting boundaries of reasonable dispute.
Legislatures could also help and would revolutionize the courtroom by enacting a simple statute along these lines:
Judges shall take the responsibility to draw the boundaries of reasonable dispute as a matter of law, applying common law principles and statutory guidelines. In making these rulings, judges shall consider the potential effects of claims on society at large.
Britain in 2006 passed a law explicitly authorizing judges to consider whether allowing a claim might “discourage . . . a desirable activity.” This kind of legislative leadership is unlikely in most American states, at least for the time being. Probably the right order of change is a few pointed appellate decisions—please, judges, start drawing boundaries—followed by statutes that explicitly give judges this responsibility.
2. Judges must actively manage the conduct of each case. The most rudimentary requirements of fair justice—keeping cases on a reasonable time frame, making judgments about how much discovery is needed—require value judgments by the judge. Litigants shouldn’t have to endure a legal gauntlet for years to see if a claim or defense is valid. Judges must constantly draw boundaries—not only on ultimate issues in the case but in getting the case to speedy resolution. Trust in justice is impossible without constant application of legal values. This is how it works in other countries; in Germany, for example, judges call in parties at the outset of a case and spend hours working through issues to limit the scope of claims and defenses so that the case can get to a fair resolution quickly.
3. Establish special courts for areas requiring special expertise. Some areas of society are too far gone; distrust and insecurity have become imbued in the culture and are unlikely to be dislodged with any incremental reform. In these situations what’s required is a clean break: establishing a special court dedicated to predictable rulings on standards of behavior. America has a long tradition of special courts in areas needing specific expertise—admiralty courts, tax courts, family courts, and bankruptcy courts, for example. There are scores of administrative tribunals, in areas ranging from Social Security to vaccine liability. The workers’ compensation system was put in place one hundred years ago to replace slow and erratic justice for workplace accidents.
A special court is needed in America for medical malpractice claims. I’ll go further. It is virtually impossible to make the choices needed to bring order to American health care without a system of justice that can reliably uphold standards of care. Setting standards is not the problem—there are established standard-setting bodies. What’s missing is a court that is trusted to uphold those standards.
A broad coalition—including large consumer groups such as AARP, patient safety organizations, public health experts, as well as doctors, hospitals, and other providers—has come together behind doing pilots of an administrative court with the following characteristics: judges dedicated to health care claims; written judicial opinions applying standards of care rather than jury verdicts; neutral experts rather than hired guns; expedited proceedings with incentives for early settlements; payments of noneconomic damages based on a schedule for different injuries; and mechanisms to compile data to learn from mistakes.
An expert health court would likely pay more people, with lower average awards and dramatically lower legal expenses. The most important role of a special health court, however, is to provide a solid legal foundation for overhauling American health care. A court that is trusted to defend reasonable medical judgments can begin to thaw the legal chill that now impedes daily professional interaction. New guidelines to minimize wasteful regional variations in care, and to encourage humane end-of-life care, can be established and enforced. Bureaucrats can rethink whether all the paperwork is really needed; much of it is aimed at self-protection. Maybe doctors will start being empathic again.
Aligning the incentives of providers with good social policy cannot be accomplished as long as doctors are focused mainly on self-protection. That’s why special health courts should be created to provide a platform of reliability. Health care can’t be fixed without it.
For many, the hardest part of giving judges boundary-setting responsibility is that we don’t trust them. It is inevitable that judges will make a certain number of bad rulings. But at least the rulings will be in writing for all to see and can be appealed to a higher court and, if really stupid, overturned by statute passed by the legislature. But having no rulings—letting all claims, however unreasonable, go to the jury—is like having a perfect record of bad rulings. In the current system, people see legal danger in the most ordinary encounters and go through the day acting as if they might be liable, thinking: Why take the risk?
Restoring the responsibility to judges and legislatures to draw the boundaries of claims is a major doctrinal change, almost comparable in scope to the shifts that occurred in the 1960s. But we don’t really have a choice. Those boundaries are essential to the rule of law. Our freedom to make sense of daily choices depends on them. Sooner or later, as former Harvard president and law dean Derek Bok observed, “our legal system [must] empower someone to keep watch and make sure that the process as a whole is meeting the needs of those whom it purportedly serves.”