Is Civil Litigation a Threat to Freedom?

By Howard, Philip K. | Harvard Journal of Law & Public Policy, Fall 2004 | Go to article overview

Is Civil Litigation a Threat to Freedom?


Howard, Philip K., Harvard Journal of Law & Public Policy


Is civil litigation a threat to our freedom? Let me start by emphasizing the importance of the civil law system in the legal structure of a free society. Lawsuits are important in order to compensate the injured, to act as deterrents, and to provide incentives for people to act reasonably. (1) Civil justice is one of many components in the American legal system that work together in order to preserve freedom. (2) The criminal justice system, for example, prevents others from stealing money; the regulatory system ensures that the water and air remain clean.

Of course, the most important legal safeguard is the Constitution, which protects against governmental abuses of power. (3) Indeed, the founders more or less defined freedom as protection against such abuse, so they provided the First Amendment, the Fifth Amendment, and the other protections of the Bill of Rights in order to ensure that all citizens would live freely in this great country. (4)

Taken together, all these components of law distinguish right from wrong. Law is the foundation of freedom because it provides guideposts of wrongful conduct in society. As long as you act within those guideposts, you are free to think what you want, say what you want, and act on your beliefs--simply because you believe it is right. You take risks, do all of the things that you choose to do, and succeed or fail according to the judgments of other free persons, not because you are coerced by law.

Today America's civil justice system is not providing these guideposts. There exists a widespread perception, generally accurate, that any injured or angry person can haul another person into court over any accident or disagreement and put that claim to a jury. There is also a perception that the amounts for which people may sue, if not unlimited, are subject to amorphous guidelines and few limits. The amounts that plaintiffs claim in lawsuits have escalated exponentially since the early 1970s. (5) Someone recently told me that, thirty years ago, a $1 million verdict in a personal injury case made headlines on the front page of the Miami Herald. Today the verdict would likely have to be $100 million to make the tenth page. This cannot be explained by inflation. Something else has changed in the American legal system to cause this escalation.

The perception that justice is kind of an "open season" has enormous appeal if people are thinking about getting back at their boss, or like to blame others, but it also has another effect that has not yet received much attention. This "open season" approach to justice has infected people's daily behavior with a kind of legal fear. This legal fear is tearing at the fabric of the culture.

Distrust of justice is transforming American healthcare, and not for the better. Escalating medical malpractice litigation costs and jury verdicts have increased malpractice insurance premiums exponentially, forcing doctors to strike, move their practices, or even leave the practice of medicine altogether. (6) In truth, society could solve this problem, without too much pain, if the government paid these costs. The total amount at stake, depending on whom you ask, is between $10 and $15 billion per year--just a drop in the bucket of our total healthcare budget. (7) But litigation costs are only the tip of the iceberg. According to a recent nationwide poll, nearly 80% of doctors said they ordered tests that they did not think were necessary solely to provide a defense in the event of a lawsuit. (8) One study suggests that the cost of this "defensive" medicine may exceed $100 billion per year. (9) That is enough money to pay for healthcare insurance for the 44 million people who are uninsured. (10)

The Institute of Medicine, perhaps the most respected organization dealing with quality and access to healthcare in our country, has conducted studies showing that the distrust of the legal system has adversely affected the quality of medical care because doctors are scared to be candid with each other. …

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Is Civil Litigation a Threat to Freedom?
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