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

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.

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Philip K. Howard is a lawyer and author, and the chair of Common Good. He most recent book is The Rule of Nobody.

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