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News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

Blog — Justice

Philip Howard Appears on Idaho Public Television

Common Good Chair Philip Howard recently appeared on “Dialogue,” Idaho Public Television’s statewide public affairs program. The 30-minute discussion with host Marcia Franklin covers such topics as principles-based regulation, the role of judges, the need to review old laws, and how to bring about change.

“In a sensible system of government,” Howard tells Franklin, “everybody ought to be free to ask, ‘What’s the right thing to do here?’ Instead we’ve got this crazy world where teachers are told never to put an arm around a crying child, and playgrounds are not allowed to have things that are fun for kids, and businesses don’t give job references, and all these things where people are paralyzed in all kinds of ways that make no sense, because of the detailed rules."

Click here to watch the full interview.

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Philip Howard Appears on “A Closer Look with Arthur Levitt”

Philip Howard recently sat down for an extensive conversation with Arthur Levitt on his Bloomberg Radio program “A Closer Look with Arthur Levitt.” Topics of discussion with the former SEC chairman included the civil service system, environmental review, education, and presidential authority.

Click here to listen to the interview.

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Are courts our legislatures?

by James R. Maxeiner

The authors of The Invention of Courts, the latest volume from Dædalus, The Journal of the American Academy of Arts & Sciences, are fixated on courts as legislatures. They imagine that courts are where democracy should unfold and rules should be made. 

Co-editors of the volume are Linda Greenhouse, longtime Supreme Court correspondent at the New York Times and now lecturer at Yale Law School, and her Yale colleague, Professor Judith Resnik. They have brought together more than a dozen contributors—all thoughtful law reformers—to deal with the issue that "in our aspiration for ‘justice for all,’ we too often fall short." They correctly see the problem: "[W]e assign courts an astonishing range of tasks while lacking consensus on whether alternative mechanisms could do some jobs more efficiently, less expensively, and better than adjudication." But they hardly offer solutions beyond more judicial legislation.

Professor Resnik, in the volume's lead essay, "Reinventing Courts as Democratic Institutions," rejoices that judges are no longer "loyal servants of the state" and lauds the "transforming [of] adjudication into a democratic practice to which all persons have access." Courts are to endure, she says, as "democratic sites of norm contestation." In other words, she would have a litigation state and a rule of lawyers.

Professor Resnik has it wrong: courts should not be substitutes for the democratic process. In a government of laws, ordinarily courts should carry out laws, not make them.  Rebuilding justice is about governing and not about litigating.  It is about drawing lines in well-drafted statutes that allow people to use their common sense and live their lives without lawyers. It is about people and the people’s servants taking responsibility under law.

The volume presents as guiding metaphor William Clift’s 1976 "Reflection: Old St. Louis County Courthouse, Saint Louis Missouri," where the infamous Dred Scott case was decided in first instance. It shows the Old Courthouse in St. Louis in the mirror image of a new skyscraper. It’s an odd choice.

Reflection, Old St. Louis County Courthouse, St. Louis, Missouri (1976)

Real reform requires more than looking in the mirror. It requires that we see through the looking glass into another world, where laws govern and judges judge. Today, American exceptionalism won’t let us stop admiring ourselves in the mirror. Other systems do work better.

It’s an odd choice for another reason. Professor Resnik sees the Courthouse "as a testament to injustices promulgated there in the name of the law." But the injustice was not in the St. Louis Courthouse, where a jury applied law to set Scott free, but in Washington, in the Supreme Court’s quarters under the Senate, where the Court relied on judicial legislation to place Scott in bondage.

The Dred Scott decision should, at the very least, cause us to question our fixation on judges and judicial legislation and lead us to consider anew the "alternative mechanism" anticipated in our federal and state constitutions: legislatures. But that’s not the message of the volume. According to contributor Professor Jamal Greene, we should accept such bad judge-made law as "a chromosomal condition … as part of who we are."

The Invention of Courts, insofar as it challenges Americans to do better, is a positive contribution. Insofar, however, as it does not challenge us to reconsider the "modern" idea that lawmaking is for courts first, legislatures second, it makes matters worse. It is past time for reformers to look beyond the dysfunctional American world to any of the many civil law systems that do work.

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Katzmann: Judging Statutes

By James R. Maxeiner

Judge Robert A. Katzmann’s newly-released book Judging Statutes (Oxford University Press) recommends reforms that echo history. His book is a welcome contribution toward saving America from dead laws and broken government.

In the 1870s and 1880s a wave of interest in better legislation swept the world. It washed up on our shores. Better lawmaking was one of the first topics that the newly-formed American Bar Association took up (already in 1884). In 1885 a committee of the Association of the Bar of the City of New York reported “A Plan for Improving the Methods of Legislation of this State.” In 1886 the American Bar Association adopted a resolution that “The law itself should be reduced, so far as its substantive principles are settled, to the form of a statute.” The Committee that proposed that resolution colorfully asked in its report in 1885:

We can imagine a primitive society, in which a king and his judges were the only magistrates. They had made no laws. The judges decided each controversy as it arose, and by degrees what had been once decided came to be followed, and so there grew up a system of precedents, by the aid of which succeeding cases were decided. Hence came judge-made law. But could any sane man suppose that this was a scheme of government to be kept up when legislatures came in?

The United States, however, rejected legislated codes in favor of judge-made common law.

Judge Katzmann’s best recommendations are not for the judiciary but for legislatures. They include:

  1. Legislators should make greater use of the legislatures’ own drafting services.
  2. Legislators should have guidebooks and checklists of common issues.
  3. Legislatures should provide default rules for legal issues not covered directly.
  4. There should be authoritative legislative history (he could have added that there should be official reports to accompany not some, but all statutes).
  5. Statutes should be regularly corrected and updated.
  6. There should be an agency, à la a ministry of justice, to formulate legislation (he could have added that such a ministry could be responsible for correcting and updating old statutes and for making sure that new ones coordinate with existing statutes).
  7. Judges should be involved in revising statutes.

We should follow Judge Katzmann’s recommendations. Better late than never. Delay does give us one benefit: we can draw on 130 years of experience from other countries with laws that are more coherent, less ambiguous, better coordinated, and more up-to-date than ours. Their laws can be understood and followed--in large measure because they anticipated Judge Katzmann’s legislative recommendations.

Judge Katzmann has less to say about how his own branch, the judiciary, could improve its performance. He does reject Justice Scalia’s textualism in favor of purposivism (looking past the word of a statute to its purpose). But an issue which deserves greater attention is judicial superiority. Unfortunately, the judge is unwilling to give up the judiciary’s grip on legislation. He signals that in his title: Judging Statutes.

America’s judges spend too much time judging statutes and too little time applying them. Judge Katzmann says the principal if not exclusive role of judges in understanding statutes is to “articulate the meaning of the words of the legislative branch.” That’s not the case in other countries with better legislation. Most of the time, judges are not expected to say what statutes mean. The statutes say what they mean. Most of the time, judges should be determining simply which statutes are relevant to the facts of the case. They need to fit the facts to the statutes and not rewrite the statutes to fit the facts. Authoritative interpretations of statutes--prescribing what statutes are to mean for the future--should be exceptional and not routine.

This criticism notwithstanding, we should thank Judge Katzmann for a work that can help Americans learn to deal better with statutes in the future.

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Warning: You Will Sue

Via James Maxeiner, here's a refreshingly (or depressingly) honest warning sign from Wisconsin (source):

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Central Park Jogger Civil Suit Settles—After 11 Years of Pre-trial

By James R. Maxeiner

The press is full of reports that the civil suit by the "Central Park Five" has been settled for $40 million. For readers who are not old enough to remember the original case from 1989, or have not seen Ken Burns’ 2012 documentary film on the case, I recap briefly. In 1989 a young woman was brutally raped in Central Park in New York City. Five innocent black and Hispanic teens were arrested, convicted, and sentenced to long prison terms. Finally, after serving many years in prison, DNA evidence exonerated the five in 2002. In 2003 they sued the City of New York.

Criminal law reformers rightly regard the settlement as an opportunity to revisit deficiencies in criminal law and procedure. These include questionable prosecutorial practices, long prison sentences, and trying juveniles as adults.

Court reformers should regard the settlement as an opportunity to revisit the civil justice system. Most reports fail to observe that the case was filed in 2003--over a decade ago. They assume such delay as a matter of course. New York is reported to have spent over $6 million and 30,000 hours on preparing its defense. The Central Park Five case makes Jarndyce v. Jarndyce in Charles Dickens’ Bleak House look like litigation at lightening speed and modest cost.

How much time should a civil lawsuit take? Not eleven years: not ever! Not a tenth that, the former President of the American Bar Association, David Dudley Field, Jr., told the Bar 125 years ago. Field thought a three-and-one-half year lawsuit (over the estate of presidential candidate Samuel J. Tilden) represented a "scandalous" delay. That is downright fast in Central Park standard time.

How much time should a lawsuit take? Not more than one year, Field eloquently said:

There is no reason in the nature of things why any lawsuit, if the witnesses are within the jurisdiction, should not be determined within a year from its beginning. When a litigation has run through the four seasons, it has run long enough. Twelve months are as long as an American citizen should be obliged to wait for justice, and I think it should be deemed a fundamental precept to all lawgivers and ministers of the law, that the judicial force be so arranged and the methods so contrived that the end of the year from the beginning of the process shall see the end of it.

Presently the American judicial force is not so arranged and its methods are not so contrived as to accomplish such a feat. It is time that they were. Those people who run our courts need to get judges to take responsibility for the cases assigned to them so that those cases are determined in a reasonable time: four seasons.

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Customer-Friendly Courts

By James Maxeiner

As law reformer Arthur Vanderbilt once reminded us, courts should serve litigants. Now the Upper House of the German legislature (the Bundesrat) has a remarkable proposal for doing just that: conduct and decide cases in English.

The high quality of German civil justice is widely known, but international litigants are often discouraged from conducting litigation in German courts because they don’t speak the language. This draft law would authorize special international panels that would act in English.

The justification accompanying the draft law addresses some important points:

  1. Using English proceedings will make German courts more attractive to international litigants.
  2. Many German judges already have high levels of English proficiency thanks to study abroad.
  3. Appellate panels and even the Supreme Court would be allowed to conduct proceedings for these cases in English.
  4. Since two thirds of Germans know English, these proceedings will still be widely accessible to the public.

This procedural change could indirecly benefit the American civil justice system as well. Were German courts regularly operating in English, the lessons of their successful system would be more visible to American observers.

One lesson we can already take from this reform: Legislatures and courts both can and should make life easier for litigants. Why doesn’t this happen more often in the U.S.?

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Rethinking the Goals of Litigation

Howard's Daily by Philip K. Howard

My post on "the evil in investing in litigation" elicited strong reactions. While most were enthusiastic, including from prominent scholars in different fields, a few, from legal scholars I respect, were sharply negative. One said that "in this case you are completely wrong."

Legal scholars tend to look at the internal logic of law. Why not let claimants lay off some of the risk of litigation on outside investors? After all, especially in complex cases, it may facilitate someone’s ability to pursue the claim.

On the other hand, I see the corrosion of daily freedoms from the prevailing belief that any loss deserves compensation—resulting in pervasive fears that any accident, any employment dispute, any commercial dispute, can result in years of litigation. Transforming justice into a for-profit industry can only exacerbate those fears. Part of the distrust of litigation stems from extreme claims. Outside investors will demand that claimants sue for the moon; the more the better. Using litigation as a tool of extortion sounds like a good business model to an outside investor. But justice is supposed to provide compensation (not rewards) from injury caused by someone else’s error (not by the mere fact of an accident or dispute).   

There’s a conflict in values here. Does a free society want to maximize the opportunities to sue, so that as few worthy claims as possible are left unrequited? Or do we want to restore justice as a keel of reasonableness, with a reputation for keeping claims in line with social values of right and wrong? Stoking the fires of lawsuits with outside investors arguably maximizes claims, but at the cost of social trust. I vote for social trust, and removing the sword of Damocles that hangs over daily interactions. That requires judges to dismiss extreme claims, and claims that might undermine the freedoms of others in society, whether children’s play, employer job references, teacher authority over classroom order, or any other of the countless freedoms that have been corroded by a sue-for-anything approach to justice.

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The Evil in Investing in Litigation

Howard's Daily by Philip K. Howard

Abraham Lincoln was an accomplished trial lawyer. He also believed that litigation should only be used as a last resort: "Never stir up litigation. A worse man can scarcely be found than one who does this." Lincoln’s view of the role of litigation prompts me to reflect on the new trend of outside investors funding lawsuits, discussed in an excellent op-ed by Gerald Skoning in today’s Wall Street Journal.

Americans have always been more litigious than people in other countries. The can-do spirit that drove Americans to push the frontiers (literally and figuratively) also resulted in more human conflict. 

Only in the last 50 years or so, however, has litigation turned into a for-profit industry. A side effect of the 1960s rights revolution was the idea that people had a right to sue for anything. Human suffering became an opportunity to get rich. Entrepreneurial plaintiffs lawyers like Dickie Scruggs, Mel Weiss, and John Edwards congregated at the intersection of human tragedy and human greed, and became tycoons. It was easy work for anyone with a knack for sales. Just find any human suffering—a baby born with cerebral palsy, a company that went bankrupt, smokers who got sick—and sue for the moon. It was all about emotion: "How much would it be worth to you to have emphysema?" The families of victims got rich. The lawyers, skimming a third or more out of multiple verdicts and settlements, got really rich. Class actions were the pot at the end of the rainbow. Scruggs reportedly got a billion dollar fee for settlement of mass tort claims on behalf of the State of Mississippi. With this much money slopping around, the temptations were too great to resist. Asbestos cases were rife with fraudulent doctors’ reports. Stakes were just too high to take the risk of losing—better just to pay someone off. Scruggs and Weiss ended up in jail. 

But there are deeper flaws than fraud in this get-rich-through-litigation idea of American success. I forget whether it was Walter Olson or Dan Popeo who observed that "America can’t sue its way to greatness." When plaintiffs get rich, defendants get poor. Asbestos litigation has driven a hundred companies into bankruptcy, costing over 100,000 jobs and causing a decline in value of investments by pension funds and others. Southern hospitals who paid several hundred million dollars in 16 cerebral palsy cases brought by John Edwards had to raise prices, directly or indirectly, to pay those verdicts. Oh, not that it matters in today’s system of justice, medical studies show that in over 90% of cerebral palsy cases, nothing the hospital or doctor did could have caused it.

These direct costs of sue-for-anything justice are only the tiny tip of a far larger cost—a pervasive fear of litigation has replaced a sense of freedom and spontaneity in social dealings. A tidal wave of defensiveness has washed over American culture. When anyone can sue for almost anything, people start going through the day looking over their shoulders. Doctors waste billions in "defensive medicine." Teachers no longer feel free to put an arm around a crying child. Businesses no longer give job references. Diving boards and seesaws disappear. Companies don’t take risks with innovative new products. Better safe than sorry. America’s can-do spirit turns upside down. Welcome to the culture of can’t do. 

The flaw in America’s litigation philosophy, as I have argued, is the notion that suing is act of freedom, like, say, free speech. No, it’s not: Suing is a use of state power, just like indicting someone. The mere act of filing a lawsuit puts a sword of Damocles over the head of the defendant. That’s why everyone is so defensive. Moreover, a lawsuit doesn’t just affect the immediate parties. What people can sue for establishes the boundaries of everyone else’s freedom. If a school in California gets sued when a child falls off a seesaw, you can be sure that schools in Massachusetts will remove seesaws. A laissez faire approach to litigation profoundly corrodes the fabric of freedom. The solution—the only solution—is for judges and legislatures to draw the boundaries of who can sue for what as a matter of law. Every claim should first go through a legal gatekeeper, asking whether this claim might erode the legitimate freedoms of people in society. These rulings of law should affirmatively defend the freedom of people to take reasonable risks—like, say, children on a seesaw. Rulings of law establishing boundaries of lawsuits are not somehow un-American. The role of the jury is to decide disputed issues of fact, not legal boundaries of a free society. They’re called "lawsuits," not "claim-anything-suits."

So now let’s return to outside investors funding litigation. They should be barred, in my view, as they were under the common law prohibition against champerty. Litigation should always be about right and wrong. Investors care only about money. Litigation should strive to compensate for actual losses, not make people rich when tragedy occurs: "Gosh, it’s terrible your dad died. We’ll teach them a lesson. You can get a new boat." Legal claims should not be permitted to undermine broader social freedoms, and lawyers should be accountable for professional values that honor broader social goals. Investors have no professional obligations, and will have every incentive to game the system like it’s a casino. Turning litigation into a business is corrosive of almost every good value of the rule of law. Abraham Lincoln, if he were here, would make this moral case powerfully.

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Federal Rules at 75

by James R. Maxeiner

The Federal Rules of Civil Procedure—the set of rules defining the process for civil lawsuits, now seventy-five years old—are outdated, inefficient, and expensive. You might not have guessed that, however, as present and former leaders of the rule-making process gathered recently for a symposium at the University of Pennsylvania to commemorate the 75th anniversary. If the symposium is any indication, urgently needed substantial reform of the federal rules is not in the cards.

The symposium’s prevailing narrative was that the Federal Rules have been a great success in adapting to new litigation challenges: lawmaking cases such as Brown v. Board of Education, private enforcement of public laws (so-called “private attorneys general”), mass tort litigation, and massive business-versus-business litigation (e.g., Apple v. Samsung). According to the narrative, the Rules were doing a pretty good job of adjudicating these claims until the late 1970s, when backlash arose against the huge costs of such litigation. Today, according to the narrative, the Supreme Court has reacted by limiting access to the federal courts (e.g., Rule 8 pleading, Rule 11 sanctions, Rule 23 class actions, Rule 26 discovery and Rule 56 summary judgment). The Court, so the narrative goes, has tilted in favor of business. “Plaintiphobia” rules.

Only a few voices spoke contrary to the prevailing narrative and suggested that the Federal Rules may have problems. Professor Harold Koh, formerly Dean of Yale Law School and Legal Advisor to the Department of State, asked provocatively whether the Rules have achieved their stated goal of “The Just, Speedy and Inexpensive Determination of Every Action”.  He answered, “at best partially.” Professor Arthur Miller of NYU, one of the harshest critics of Supreme Court decisions limiting court access, gave them a less than stellar grade: “at best, B minus, and on an inflated grade curve, below the median.” He decried reforms of recent years as mostly “tinkering.”

There was one common theme of dissatisfaction: cases are no longer decided. Trials, and with them juries, have vanished. Only one percent of cases get trials. Judges are not judges of disputes, but “terminators” of case files—a point helpfully illustrated by a slide image of Arnold Schwarzenegger.

The flawed, prevailing narrative nevertheless remained: the Federal Rules must be preserved as they are (largely as they were in the 1970s) for these new forms of litigation, even if that means accepting unjust, expensive and slow resolution of disputes. In truth, new forms of litigation require new rules.

Several presenters came close to saying that the “transsubstantive” model, i.e., the same rules for all cases, is no longer valid. They suggested that the Federal Rules should have different litigation tracks for different sorts of claims. Under this approach,  the process of discovery and judicial supervision might vary among different types of cases. Just maybe, such simpler procedures would bring needed common sense to federal dispute resolution.

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