Judges: The Problem and Solution to America's Judiciary Mess

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To make the justice system fairer for all, courtrooms need to push back on absurd plaintiff claims.

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There's a tendency to take American justice for granted, like a trusty utensil that has generally served our free society well over the past two centuries. Sure, there are ideological battles in the Supreme Court over Obamacare, and the odd crazy case, like the administrative law judge in D.C. who sued his cleaners for $54 million for losing a pair of pants.

But by and large American justice gets to reasonable results, and along the way provides no small amount of prurient entertainment, such as revealing the sleazy, egomaniacal conduct of former Senator John Edwards. American justice also has the virtue of not being corrupt (although there are some sordid aspects of judicial elections, which retired Supreme Court Justice Sandra Day O'Connor is working to change).

Letting people argue anything favors whoever is in the wrong.

But 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. America's can-do culture corroded, and became shaky and defensive. When in doubt, don't.

Evidence is everywhere. Foreign investors are reluctant to invest in new facilities in America for fear of a random ruinous jury verdict. Government approvals slow to a crawl to prepare for any possible NIMBY objector. Schools ban tag and running at recess. Seesaws, diving boards, and jungle gyms are nearly extinct. Teachers will no longer put an arm around a crying child. Doctors practice defensive medicine, wasting billions in unnecessary tests and procedures. Personnel reviews are so scripted as to be meaningless. My own firm has a list of questions I'm not allowed to ask, including this sinister question, bulging with innuendo: "Where are you from?" Trivial warning labels plaster the landscape: "Caution: Contents are hot."

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The effects of defective justice ripple through every segment of society. Family courts in New York are a Dickensian madhouse, taking years to resolve important personal decisions such as child custody or foster care. Criminal justice now incarcerates one in nine black men aged 20 to 34, largely for possession of drugs. Is this fair, or wise? Or does putting young people in jail only lead to future incarceration?

Justice has become so procedurally elaborate that only the rich can afford to get to trial. But even the rich won't take that risk, because prosecutors can game the sentencing guidelines so that an indictment could lead to decades in jail if you lose. Plea bargaining for a sentence of, say, six months looks irresistible, even if you believe you're innocent. Should prosecutors have this power of extortion?

But the problem goes beyond aggressive prosecutors and overloaded court dockets. It goes straight to the heart of day-to-day justice: the failure of judges to keep claims within reason.

Digging deep into the roots of modern judicial orthodoxy, there's one false assumption that contributes to most of these baleful effects: Judges think they are just referees in a neutral process. That neutral process, they think lets people claim and argue whatever they want. Don't Americans have an "individual right" to sue? Justice, judges believe, will ultimately be decided by juries as a matter of objective proof.

This assumption is flawed on many levels. Letting people argue anything favors whoever is in the wrong: Defendants with weak cases can use a variety of tools to delay proceedings and run up legal costs that bleed the other side. Plaintiffs can make extortive claims that bludgeon the other side into settling.

Law is not an abstraction, or merely a process. It requires active assertion of legal values of right and wrong in each case. If judges don't make continual legal rulings about the boundaries of right and wrong, then justice becomes a perpetual-motion machine. And justice delayed is justice denied.

To feel free in daily dealings, people must believe there is someone working on behalf of society who will affirmatively defend their reasonable conduct if there's a dispute. Today, no one is doing that. Juries make decisions only after years of pre-trial proceedings, and are not bound by prior cases. Judges think their job is to sit on their hands and let people argue. Letting anyone sue for anything is not proof of fair justice. It is proof of unfair justice. That's why Americans go through the day looking over their shoulders.

"The first requirement of a sound body of law," Justice Oliver Wendell Holmes Jr. said, "is that it should correspond with the actual feelings and demands of the community." We have lost sight of a basic goal of justice. We must rethink the respective roles of judges -- and juries.

Juries in civil cases should decide issues of disputed fact, not legal boundaries of who can sue for what. Juries lack the authority to set precedent. To feel free, people need judges to assert those boundaries as a matter of law. Prosecutors, too, need to be reined in by judicial rulings. Justice Benjamin Cardozo put it this way: The judge must act as "the interpreter for the community of its sense of law and order."

Americans have been brainwashed into thinking that there is a "right" to claim almost anything. Lawsuits are not a unilateral act of freedom, like free speech, but an act of state power -- just like indicting someone for money. We would never tolerate a prosecutor seeking the death penalty for a misdemeanor. So why do we allow an obsessive lawyer to claim $54 million for a lost pair of pants?

No sensible system of justice would allow what happened in that case: The claim went on for two years, with full discovery, to a bench trial, until eventually the obvious result occurred. The dry cleaner prevailed, but lived under the cloud of litigation for several years and had to close one of its two stores to pay legal fees.

Justice isn't that hard in most cases. "Maybe you have a claim in small claims court for $100 for your lost pair of pants, but not in a court of general jurisdiction for millions of dollars. Case dismissed, without prejudice to re-filing in small claims court." That's it. It takes 5 minutes. If the judge acts wantonly, the ruling is subject to appeal.

"An act is illegal," Professor Donald Black once observed, "if it is vulnerable to legal action." By that standard, almost any act that someone feels aggrieved by is illegal. Justice today does not support free interaction. In many areas justice today undermines it.

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Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore's Common Sense Government. More

Philip K. Howard is the author of Life Without Lawyers(Norton 2009), as well as the best-seller The Death of Common Sense(Random House, 1995) and The Collapse of the Common Good(Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore's book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP. In 2002, Howard founded Common Good (www.commongood.org), organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern, and Alan Simpson. Howard is a civic leader in New York and is Chair-Emeritus of the Municipal Art Society, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.
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