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Blog — Justice

To reduce lawsuit abuse, use smart system design, not sanctions

By James R. Maxeiner

maxeinerOn Monday, October 21, the Law and Economics Center of George Mason University held a Congressional Civil Justice Caucus on the pending Lawsuit Abuse Reduction Act of 2013 that aims to “put teeth back into Rule 11” sanctions to reduce frivolous litigation. It would reverse the 1993 amendments to Rule 11 that let litigants escape sanctions for frivolous claims by withdrawing the claims within twenty-one days after a motion for sanctions is made.

The bill has been met with some skepticism. General Electric litigation head Bradford Berenson, for one, is not an enthusiastic supporter: "There are other tools that are more powerful, more helpful, and get more at the real problems with our system."

Coincidentally, only days earlier, I had addressed a group of twenty judges from the Nanjing China People’s Intermediate Court at the University of Baltimore for a two-week training session. The judges were particularly interested in how the United States approaches abusive litigation–evidently it is a serious problem in China. I told the judges that other countries do not need to sanction abusive litigation because they remove incentives to bring abusive claims. In effect, I agreed with Mr. Berenson that smart design and not sanctions are the answer to reducing abusive litigation.

How do other countries ensure good faith litigation? Germany offers an instructive example. Here are some of the ways it mostly eliminates incentives for meritless litigation:

  1. Filing fees are proportionate to amounts claimed. The U.S. Federal Courts are flat-rate. $350 is the admission ticket no matter how much you claim. Not so elsewhere: claim more, pay more.
  2. Fees are shifted to the loser. Fees shifted are limited to proportionate amounts. Losing is determined by whether you get all that you ask for. Demand $1,000,000 and get $10,000, you are the 99% loser and pay 99% of the attorneys’ fees and court costs.
  3. Judges review plaintiffs’ complaints for sufficiency (‘plausibility’ if you will), before they serve them. Plaintiffs plead facts and the evidence they plan to rely on; judges know the law. The judges’ maxim is “tell me the facts, I will tell you your rights.”
  4. Judges at the outset of the case meet with the parties to focus the parties on which law applies and which facts are in dispute.
  5. Judges supervise evidence taking and decide in every instance whether evidence proposed to be taken concerns those material and disputed facts. There’s no need to take evidence on anything else.
  6. Parties are under a duty of cooperation. Since they can only take evidence with court permission, they cannot force the other side to provide unlimited discovery.
  7. Although judges focus the parties early on material facts in dispute, in the case, they do not foreclose looking at other facts and law if the case develops in an unexpected way. They do not decide the case finally until the day of the last oral hearing.
  8. Judges, as they are in bench trials in America, are required to explain their decisions. That means an implausible verdict is not likely. If the court in its decision somehow credits an implausible claim, the appellate court, which reviews law and facts, has an easy time correcting it.

All of this you can find in greater detail in my book Failures of American Civil Procedure in International Perspective with a foreword by Philip K. Howard. It works.

James R. Maxeiner is the Associate Director of the Center for International and Comparative Law at Baltimore University.

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Should bullies get three months in jail?

by Lenore Skenazy

It's hard to think of anyone in favor of bullying, but this seems truly overboard: A proposal in Australia to prosecute kids as young as age 10 for bullying. According to The Daily Telegraph:

CHILDREN as young as 10 could be criminally charged as part of a radical proposal to overhaul Australia’s approach to bullying.

A symposium organised by the National Centre Against Bullying and the Australian Federal Police will next week consider how laws should be strengthened to fight bullying and cyberbullying.

It’s hoped that as a result of its recommendations, Australia will become the first country in the world to have unified national laws to address bullying.
NCAB chairman Alastair Nicholson, the former Chief Justice of the Family Court of Australia, said the law does not define bullying, cyberbullying or clarify the legal duty of schools, teachers, parents and carers.

He said a summary offence for bullying with a maximum penalty of three months jail would help educate people and act as a deterrent to offenders.
“I think there is a real need to examine the way the law operates, if only so that people know where they stand,” he said.
But bullying shouldn't be handled by the police and courts unless it involves things the police usually deal with, like actual crimes, not just rotten behavior.

The "school to prison pipeline" is already getting clogged with merely disobedient kids now trailing rap sheets, thanks to more and more police, not principals, mediating school scuffles. And besides, says Susan Porter, author of Bully Nation: Why America's Approach to Childhood Aggression is Bad for Everyone: "Laws, by definition, are intended to deal with situations in a uniform way. If there’s one thing we know for sure about children is that they are not uniform, nor do they respond in uniform ways to consequences."

Kids develop in different ways at different times, and even swing between being bullied and being the bullies. Defining them as one or the other isn't the job of the cops unless the kids are breaking a law. (And a real law, at that. Not a "Zero Tolerance" edict issued by some bureaucrat who sees bullying in every schoolyard scuffle.)

As for three months in jail? THREE MONTHS? "These laws are at best misguided," says Porter. "At worst they will hurt the very people we are trying to protect and educate: children."

Draconian laws don't make kids safer. They just make lawmakers look like bullies, eager to pounce on defenseless kids.

Lenore Skenazy is a public speaker and the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Should Teens Not Cross the Street Alone? $90 Million Lawsuit on the Line

By Lenore Skenazy

A 13-year-old gets hit by a car while crossing the street to get to her school bus stop. She dies. Who is to blame?


Believe it or not, the school board--to the tune of $90 million. That was the decision of a Prince George County, MD, jury. What did the board do wrong? According to this story in U.S. News:

“The school board was negligent,” said John Costello, the lawyer for the family. “They had adopted a policy to provide for safe transportation. The policy was they were going to pick up Ashley on her own side of the street. They never did. They forced her to cross the street. She got killed crossing the street.”

“If she didn’t have to cross the street …  she’d be graduating this year,” her mother said. “She’d be going to prom this year.”

So if the school board was $90 million wrong for not putting a bus stop on the girl’s side of the street, does that mean every school bus should go up and then back down each street, to make sure no child ever has to cross? Otherwise are they all “negligent”?

Of course not. The jury is treating a tragic and rare event as if it were predictable or even common.  But it’s not. We know it’s not. Milllions of children around the world cross the street every day and , thank God, the vast majority of them are safe.

But when school boards start worrying that $90 million says they better not let any student cross the street EVER, well, let’s see what happens next. Will there be no more school buses, because the liability is too great? Or maybe we’ll see twice the number of daily buses--one for each side of the street? Or--here’s what I’m most afraid of--will students up to and including age 13 be required to have an adult accompany them when they cross the street?

What a simple and cheap solution that would be for the school districts and bus companies. All it would cost is a child’s autonomy and an adult’s ability to get to work on time. Already there are districts that forbid kids to ride their bikes to school, or walk home alone until a certain age, even if the parents and child both believe the kid is ready. The reason for these helicopter rules is liability. Better not to let kids do anything on their own than to face a grief-crazed jury.

It’s natural to want to blame someone when a child dies. But here’s a novel thought: Instead of blaming the very notion of expecting a 13-year-old to cross a street…why not blame the driver of the car that hit her?

Lenore Skenazy is the author of the book and blog “Free-Range Kids,” which launched the anti-helicopter parenting movement. She’s going to be posting here from time to time on issues of interest to Common Good supporters. As Lenore puts it, she’s ready to make “America the Home of the Brave again, not the Home of the Bureaucrats So Stupid that a Hazmat Crew Gets Called to a High School When a Student Brings in a Mercury Thermometer. (Which really happened a few months back, in Florida.)” And here’s her outrage of the week. Chime in!

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Infographic: Lawsuits in America

It's no secret that the American legal system is broken. The website eLocal recently published the graphic below, depicting the facts and figures of the status quo. Jaclyn Nicholson, of eLocal, wanted to share some thoughts with Common Good supporters:

Each year, 15 million civil cases are filed in the U.S. Unfortunately; many people are looking to come across a big paycheck, resulting in frivolous lawsuits. Lawsuits are handled differently in different countries. For example, in other legal systems, the loser in a suit must pay a large portion of the winner’s legal fees, which encourages litigants to exercise more caution. In the U.S., each party pays their own fees, giving people less of an incentive to be careful with lawsuits. Check out this infographic to learn about torts and America’s obsession with lawsuits.

We the Plaintiffs Infographic

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Poll shows Americans dissatisfied with justice system

On behalf of Common Good, Clarus Research Group, a nonpartisan survey firm, recently polled voters across the country to find out what Americans think of our court system. The results were crystal clear:

  • A mere 6% of the electorate believes that the legal system should be kept as it is, while an overwhelming 92% want change. A majority want either fundamental change or want to completely rebuild the system.
  • 86% of voters agree that there is an increasing tendency for Americans to threaten legal action and lawsuits when things go wrong.
  • 67% say that the time and trouble it takes to file a lawsuit discourages many people with legitimate cases from going to court.

More results can be found here. For penetrating analysis of the shortcomings of our justice system, and innovative proposals for improvement, head to our America the Fixable series "And Justice for All" at The Atlantic.

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5 Steps for Fixing the Civil Justice System

Former Colorado Supreme Court justice Rebecca Kourlis has contributed a new essay to our America the Fixable series, arguing that our civil justice system is in dire need of repair. “Runaway discovery and motions practice has led to runaway costs,” she writes. “A relatively small lawsuit can involve tens if not hundreds of thousands of dollars for depositions and document exchanges. Most attorneys today won't even consider taking cases where the possible award is under $100,000.”

Kourlis believes that a few common-sense steps could dramatically improve the efficiency and reliability of our civil courts. Click here to read all her recommendations.

"America the Fixable" is an online magazine collaboration between The Atlantic and Common Good. It provides a bipartisan forum for the presentation of bold, new ideas to reform America's governmental and legal system--ideas that need to be part of the 2012 debate.

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We Need Judges, Not Doormats

America the Fixable, Common Good's ongoing series with The Atlantic, is now addressing problem of unreliable justice. Philip K. Howard, founder and chair of Common Good, writes: "American justice has taken on a life of its own, following theories of fairness that are no longer connected to the needs of a free society. Instead of a bedrock of right and wrong, justice has become a tool for self-interest and gamesmanship. Almost without our noticing it, daily dealings became infected with debilitating legal fear."

Over the next few weeks, America the Fixable will explore ways to fix our broken legal system. As Howard puts it, "The effects of defective justice ripple through every segment of society."

Read the rest of Howard's essay here, and visit America the Fixable for more transformational ideas.

"America the Fixable" is an online magazine collaboration between The Atlantic and Common Good. It provides a bipartisan forum for the presentation of bold, new ideas to reform America's governmental and legal system--ideas that need to be part of the 2012 debate.

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Start Over: New Ideas to Overhaul Government, Regulation, and Litigation

Start Over

Read Philip K. Howard's collection of essays--proposing bold, big ideas to fundamentally reform our governmental and legal systems. Available for download.

Click here to view and download the 20-page Start Over publication.

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Disabilities Act: Plaintiffs Come Second

The front page of today’s New York Times features a story on the Americans with Disabilities Act in New York City. Lawyers, trying to create fee opportunities, scan small businesses for code violations. Once a violation is discovered, the lawyers then seek out a disabled person to serve as plaintiff. Most cases are settled without advancing to trial. The plaintiff typically receives $500 while the lawyer can win thousands of dollars in fees.

The Times reports that one plaintiff alone has filed 143 suits, as many as nine per day.

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Dirk Olin and Jim Maxeiner on Civil Justice

Common Good is committed to improving the reliability and fairness of civil justice, and too few people in the U.S. are talking about substantive ideas for improvement. At a recent event in New York, Philip Howard, Chair of Common Good, spoke with two authors and scholars who have provided lucid observations and analyses of our justice system and possible improvements.

Dirk Olin is the co-author, with Rebecca Kourlis, of Rebuilding Justice: Civil Cours in Jeopardy and Why You Should Care. Jim Maxeiner is the author of Failures of American Civil Justice in International Perspective. Watch the clips below to hear how they believe we can move forward:

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