Sunday, January 11, 2009

Legal Minefields, Using State Power for Private Aggrandizement, and The Death of Common Sense

In his column today George Will discusses America's increasingly perverse legal culture, and reviews what he considers to be 2009's most needed book on public affairs -- Philip Howard's "Life Without Lawyers: Liberating Americans from Too Much Law." Will talks about the "bubble wrap approach to child rearing" produced by the "cult of safety," and by trial lawyers "congregating at the intersection of human tragedy and human greed."

Some excerpts:

"A nation in which the proportion of lawyers in the work force almost doubled between 1970 and 2000 has become ludicrously dense with laws. Now legal self-consciousness is stifling the exercise of judgment. Today's entitlement culture inculcates the idea that everyone is entitled to a life without danger, disappointment or aggravation. Any disagreement or annoyance can be aggressively "framed in the language of legal deprivation."

Law is essential to, but can stifle, freedom. Today, Howard writes, "Americans increasingly go through the day looking over their shoulders instead of where they want to go." The land of the free and the home of the brave has become "a legal minefield" through which we timidly tiptoe lest we trigger a legal claim. What should be routine daily choices and interactions are fraught with legal risk.

Time was, rights were defensive. They were to prevent government from doing things to you. Today, rights increasingly are offensive weapons wielded to inflict demands on other people, using state power for private aggrandizement. The multiplication of rights, each lacking limiting principles, multiplies nonnegotiable conflicts conducted with the inherent extremism of rights rhetoric, on the assumption, Howard says, "that society will somehow achieve equilibrium if it placates whomever is complaining."

But in such a society, dazed by what Howard calls "rule stupor" and victimized by litigious "victims," the incentives are for intensified complaining. Read Howard's book, and weep for the death of common sense."


At 1/11/2009 2:29 PM, Anonymous Anonymous said...

Couldn't agree more. But the scope may be too narrow--it's not just an abusive civil law system. Here's what I wrote in Comment column in reply to Will:
I am a 33 year bar member (who has never “practiced”--only "Public policy" (“Lobbying”)/national security work, and teaching Legal Ethics (yes- an oxymoron). Will's comment has stimulated the most comprehensive array of representative viewpoints from every thoughtful, mendacious, intelligent, arrogant, lame and/or insightful perspective on the Tort Reform slice of Rule of Law debate I have seen in 3 decades--and all before noon.
Importantly, for the law--and, hopefully Mr.Will as well--what this preoccupied distraction towards the dated debate on Tort Reform/Trial bar abuses does not address is the "bleed out" into the larger civil domain, and even the criminal law of a continuing evolution by portions of the Bar, abetted by legislatures, acting essentially in cahoots, towards the "interested party" litigation the Tort reform movement decries. [Thankfully, the Bar and bench are addressing tort abuse. Rule 11 in the Federal Rules of Civil Procedure sanctioning frivolous pleadings decades ago began this self-restraining exercise of common sense, which continues with prosecution of trial lawyers and close examination of plaintiff documentation and other oversight of "class" actions.] There has been for some time a recognition among many interests in the law/policy community how successful the civil trial bar has become at profiting from expertise/empowerment at the Human Tragedy/Human Greed intersection Will cites. Abetted by the divisive, indeed, DESTRUCTIVE capacity of legislatures to empower patrons of embedded government elites (bureaucrats, legislators, staff (especially in states where these staff are party functionaries and/or practice law/lobbying for a fee in the capitals), our states are now doing things like: (1) First, Authorizing (passing a statute) allowing a private company to construct, manage and collect tolls on an 18 mile expressway outside a major city, (2) permitting unconstrained TREBLING of passenger car tolls in less than 10 years, to a now-$8 per day round trip (about twice the cost of similar public transportation), (3)acquiescing in "cost-saving" elimination of human toll collectors during "third shift" night-time hours, replacing them with credit card-only toll payment (except for "EZ Pass"), (4) all enforced with the stationing of a state trooper in a pursuit vehicle on "evader watch" duty at the toll plaza, thus placing the authority of the state to write tickets as the agent of a private contractor collection service, and (5) all of this backed up by CRIMINAL misdemeanor sanctions for failure to pay.
So, a business “granted” a right to charge whatever it wants for the public's use of what should be a public thoroughfare is leveraged by criminal prosecutions. Yes, to enforce assured collection of a fee for each trip on "its" road, this private toll road contractor becomes a modern Sheriff of Nottingham. Initially, in de Touqueville's era, proprietors of private toll roads and canals were limited to “denial of service”, or at perhaps, self help. [Indeed, cases are reported of toll evaders, assaulted by private road operators, successfully bringing criminal assault charges against baton-wielding tolls collectors.]
When the CRIMINAL court system becomes the agent of such camouflaged private financial interests, the persistence of tort law abuses seems of less concern. Why ? Because, like rendition and the abetting of interrogation with torture, these criminalizations represent the modern equivalent of imperial "crown" authority in pre-Magna Carta times--the use of prison and the gallows to assure that the serfs muffle their objection to self-interested collection of "tax" by the landlord. The first modern rebels against such abuses were the disenfranchised among the barons themselves. Not until we and the French read enough Locke did modern Constitutions evolve, nominally directed towards equality-i.e. including all citizens under the protections of the "Rule of Law", with representative democracy and limits on the power of the sovereign. Orderly resolution of disputes demands a judiciary worthy of unquestioned respect—but subject to continually reviewed scope. The cooptation of law enforcement and the judiciary represented by statutes making courts the collection agents of private interests like toll road operators, under threat of CRIMINAL penalty contributes to a continuing decline in the respect necessary for orderly dispute resolution. Sadly, when our penchant for rationalizing our lazy incapacity for coping with complex modern society by addressing "the hard problems" list in a monkey-see, monkey-do fashion, [e.g.—making the Courts collection agents for private contractors with tenuous claim on their fees in the first place (“pay me or I’ll sue you !”) we probably have reached what President-elect (then professor) Obama described in a Constitutional Law lecture on the Federalist papers as a juncture of ambiguity in the rules debated by the Founders.

At 1/11/2009 7:54 PM, Anonymous Anonymous said...

Interesting how you basically gloss over all the legal abuses and go after granting of monopolies for roads. I was over at Justia the other day, noting how Walmart is sued at least once a day. My college instructor lost the ends of his fingers to a hand grenade, yet someone is suing Walmart for a quater million after a gallon of tea dropped on her foot.

I actually would prefer more toll roads to the stupid Max train in Portland, grid lock everyday from 3:30pm to 7pm is annoying. We grant monopolies all the time to stuff like power, water, sewer, cable, and telephone.

At 1/12/2009 10:00 AM, Blogger juandos said...

Yet another lesson in, 'why elections have consequences' brought to us by George Will...

Professor John Lott notes Elections have consequences: Trial lawyers will be very busy in labor markets with reference to an New York Times article: House Passes 2 Measures on Job Bias...

Could this mean more of that "Man-Cession" Continues to Worsen ?


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