"x x x.
American justice has become a parody of itself. This week's example is the $54 million lawsuit by a lawyer in Washington, DC against his dry cleaners for losing a pair of pants. Now the tort reform debate -- tired sloganeering about "frivolous lawsuits" versus "the right to sue" -- has come to the point of self-parody as well. Robert Bork, long-time critic of "the litigation lottery", has sued the Yale Club for "in excess of $1,000,000" as a result of a fall he took while trying to step onto the dais to make a speech last year.
What's missing in the legal reform debate is a coherent idea of how justice is supposed to work. People injured by mistakes, we can all agree, should have access to efficient justice. Baseless or excessive claims, we can also agree, should be dismissed early -- otherwise justice becomes a weapon for extortion. What's the mechanism by which justice balances these scales?
Professor Bork's lawsuit joins this issue nicely. In an editorial today, The New York Timespointed out that if the situation were so hazardous, "why did Mr. Bork try to climb up to the dais? Where does personal responsibility enter in?" Instead of concluding that American justice needs to start drawing these legal boundaries, the Times is content to serve up the rich irony of the situation:
"Since we believe in the tort system, when properly used, all we would ask is whether Mr. Bork's unfortunate experience at the Yale Club has led him to re-evaluate any of the harsh things he has said in the past about injured people, much like himself, who simply wanted their day in court."
Rewinding the editorial tape, here's how I would end the editorial...
Every time something goes wrong -- every single time -- it is possible to make a claim that something more should have been done. "There should have been a handrail. Someone should have offered to help me up. There should have been a warning." Hindsight always affords the opportunity for infallible logic.
The role of law is not to allow anyone to sue for anything, but to draw lines of what's reasonable. Do people assume the risk of activities like stepping onto the dais? That needs to be decided as a matter of law. Otherwise people don't know where they stand. They become fearful in daily dealings. No one is drawing these lines today. Justice is, literally, out of control. Cases are decided jury by jury, without precedent or legal guidance.
Judges must take back control of the courtroom. Litigants will always push the envelope. They can't help themselves. Our founders believed that "man was an unchangeable creature of self-interest," historian Richard Hofstadter observed. That's why it would "not do to leave anything to his capacity for restraint."
Robert Bork unwittingly has illustrated what's wrong with American justice: litigants should not be allowed unilaterally to drive the agenda of justice. Even a man deeply committed to legal reform cannot transcend his own self-interest. Justice will continue to lurch back and forth until judges take back the authority to maintain the balance and reliability that is the goal of the rule of law.
Mr. Howard, a lawyer and author, is Chair of Common Good.
x x x."
