…I come to Howard’s book with a fair amount of skepticism. Any system of law will produce outrageous outcomes from time to time—the $54 million trousers. And the demand for law “reform” often is really a campaign on behalf of big companies and other institutions that do not want to pay large damages for their wrongdoing.
Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit is one of the most highly regarded judges in the country, and no one would call him a soft-headed sentimentalist. In a recent book, How Judges Think, he discusses the legal philosophy he calls “legalism,” which tries to confine legal interpretation to narrow historical and rational grounds. “The currently most influential incarnations of legalism,” he writes, turn out
“to be guided by a political judgment: that there are too many legally enforceable rights. Today’s exaltation of legalism is to a significant extent a reaction by politically conservative legal thinkers, including a number of prominent judges, to the expansion of rights and liability—particularly the rights of tort (including civil rights) plaintiffs, breach-of-contract defendants, prisoners, consumers, workers, and criminal defendants…”Some proposals by advocates of “law reform” transparently serve conservative interests. One, for example, is the idea that losing parties in civil lawsuits should have to pay the lawyers’ fees of the winners. That sounds fair, but its practical result would be to make it forbiddingly risky for anyone but the well-off to sue. Defendants with deep pockets could incur enormous costs, which would have to be paid by plaintiffs who lost lawsuits.
Howard does not make the fee- shifting proposal, and he does not come across as a stalking-horse for the interests of large corporations, insurance companies, and other frequent defendants in tort cases. The examples he gives in his parade of horribles seem outrageous. But I doubt that they sustain his indictment of the entire legal system. Do Americans really “tiptoe through law all day long”? I don’t. Do “legal fears constantly divert us from doing what we think is right”? Something like that may indeed be so in some fields; doctors do often practice defensive medicine, ordering unnecessary tests in case of litigation, and schools do worry about lawsuits. But for the society as a whole it is surely an overstatement.
Nor does Howard dig deep enough to explain the excesses of American tort law and the eagerness to seek vast damages for civil injuries. He blames the overreaching of Earl Warren’s Supreme Court in its sympathy for the little man, and the mood of antipathy to large institutions starting in the 1960s. He does not explore deeper social causes.
Click here to read the whole review. It’s worth it.