Posted 3/4/14 by Philip K. Howard
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.