Lawsuits Should Not Be a Free-For All

Today, anyone can sue anyone else, regardless of how ridiculous the claim may be. But it wasn't always like this.


The cornerstone of fair government and ordered liberty is "due process of law": the state must define legal obligations in advance and apply them even-handedly. That principle is under assault today from an unusual source: the federal courts. An obscure change to a procedural rule in 1938 delegated to any private person the absolute right to commandeer the power of the state to issue an official court order (a "summons") to any other person to stop whatever they are doing and report to court to spend time and money defending against any charges, no matter how bogus, regardless of whether they have any basis in either law or fact.

Today anyone may sue anyone over anything: the fleeing felon who breaks in, takes hostages, and then sues his victims for allegedly violating their oral contract to hide him from the police; the convict who sues the makers of baking soda for failing to warn it is illegal to use their product to make crack cocaine; the D.C. administrative law judge who sues his dry cleaners for $54 million for losing his pants (and thereby imposes over $100,000 in legal expenses on the store's Korean-born owners).

Some examples may be amusing, but the problem is not. Millions of dollars a year are spent defending against lawsuits that never should have been brought. For example, when several states enacted a requirement that a doctor has to sign a paper saying that someone is actually sick, asbestos lawsuits dropped by an average of 90 percent.

The consequences of abrogating judicial quality control over lawsuits are not just economic; social interactions are also poisoned by the threat that one might be sued over almost anything. Nearly 80 percent of middle and high school teachers have been threatened with lawsuits or accused of rights violations by students. That threat is always in the back of your mind when you stand up in front of a class. As Ben Stein puts it, "In this country, the system of laws is such that a trial lawyer can say any damned thing in a claim letter -- any fantasy, however fictitious -- send it off, and next thing you know, you are shelling out time and money defending yourself against a fantasy. It is a nightmare, only it's real."

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It was not always so. Our founders refused to delegate the fearsome power to summon others to court into private hands. When they created the federal courts, they specifically provided in the 1792 Process Act that every court order, including the writ of summons ordering someone to answer civil charges, had to be signed off on by a judge. Throughout the 18th and 19th centuries this federal law was understood as keeping court orders, including the writ of summons in civil cases, "under the immediate supervision and control of the court," in the words of a 1884 federal circuit court. The practice was for the lawyer and the plaintiff to appear before the judge, or the clerk of court, and explain the grounds on which he wished to bring a lawsuit. The court would review the proposed lawsuit and decide whether it was plausible enough to compel the defendant to respond. If it wasn't, the judge would dismiss the case right then and there, without requiring the defendant to spend time and money responding, and the disappointed would-be litigant could appeal.

Today we still follow that traditional procedure of preliminary judicial review for reasonableness before intruding on someone's privacy in most other situations. Government agencies are required to have a judge review a subpoena before you are required to answer it; the police have to get a warrant from a judge before they can search your property except in exigent circumstances; a judge must review a summons in a criminal case before it is issued; and federal judges must review every case brought by a poor person who cannot afford to pay the filing fee before issuing a summons. The only exception where we allow state power to be exercised privately without any judicial quality control is in summoning someone to answer civil charges if the plaintiff can afford to pay the filing fee (currently $350).

Worse yet, the state's power to compel someone to answer civil charges is typically being exercised by someone with a personal financial interest in imposing costs to coerce settlement; no judge could issue a court order if he or she stood to profit from it.

In an article in the July 2012 issue of the Florida Law Review, I argue that our current practice of issuing court orders without any effort to verify that it is reasonable to do so is unconstitutional as an unreasonable seizure, a violation of due process, and an illegal delegation of government power to private citizens.

Whether or not I am right on the constitutional law, it is time to go back to the practice of judicial quality control over lawsuits that governed us for 150 years, from the Revolution until the 1938 Federal Rules of Civil Procedure allegedly "superseded" the 1792 Process Act. As the Supreme Court recognized in 2007, "it is costly to answer charges." As a result, settlement value can be created by ordering the person sued to spend money defending themselves, whether or not claims are valid. The practice of filing "strike suits" to manufacture value by coercing settlements to avoid the costs of litigation is particularly egregious in America; we are one of only three countries in which those who bring invalid lawsuits do not reimburse a substantial portion of the costs that they have wrongfully imposed on others.

Judge Learned Hand once wrote that being sued was a calamity to be dreaded above all others short of sickness and death. It is time to insure that those persons and corporations rich enough to pay the filing fee can no longer visit this calamity on anyone they choose without any judicial supervision.

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E. Donald Elliott, an adjunct professor of law at Yale Law School, is an academic scholar and a practitioner in the fields of administrative and environmental law. More

Elliott has been on the Yale Law faculty since 1981 and currently teaches courses in environmental law, energy law, administrative law and civil procedure. He is also a partner in the Washington, D.C. office of the international law firm, Willkie Farr & Gallagher LLP, where he chairs the firm’s worldwide Environment, Health, and Safety Department.

From 1989 to 1991, Elliott served as Assistant Administrator and General Counsel of the U.S. Environmental Protection Agency (EPA). In 1993, he was named the Julien and Virginia Cornell Chair in Environmental Law and Litigation at Yale Law School, the first endowed chair in environmental law and policy at any major American law school. From 2003-2009, he was a member of the National Academy of Sciences Board on Environmental Studies and Toxicology, which advises the federal government on environmental issues. Elliott also testifies frequently in Congress on environmental issues.

He has served as a consultant on improving the relationship of law and science to the Federal Courts Study Committee, which was chartered by Congress to make recommendations for improving the federal courts, and to the Carnegie Commission for Law, Science and Government. He co-chaired the National Environmental Policy Institute’s Committee on Improving Science at EPA.

Elliott is a Senior Fellow of the Administrative Conference of the United States (ACUS) and an elected member of the American College of Environmental Lawyers, as well as a member of the boards of the Environmental Law Institute, the Center for Clean Air Policy, and NYU’s Institute for Policy Integrity. He is the author or co-author of seven books and has published more than 70 articles in professional journals. He was named one of the top 25 environmental attorneys in the United States by the National Law Journal and is highly ranked in Chambers USA: Leading Lawyers for Business; Best Lawyers in America; D.C. Super Lawyers; Who’s Who in American Law; and Who’s Who in the World.

He earned both his B.A., summa cum laude and Phi Beta Kappa, and his J.D. from Yale. Following graduation, he was a law clerk for Gerhard Gesell in the U.S. District Court for the District of Columbia, and for Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit.

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