A New Code for Reliable Justice

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By separating valid claims from invalid ones, judges can finally give our legal system the predictability that it requires.

txjudge_bnr.jpgTexas Military Forces/Flickr

A few weeks ago 13-year-old Matthew Migliaccio was sued for an errant throw that hit a spectator at a Little League game in Manchester Township, New Jersey. The incident occurred in May 2010, when as an 11-year-old catcher -- warming up a pitcher in the designated bullpen area of the field -- Migliaccio overthrew his target and opened the door to legal liability.

In America, there's no such thing as an accident without a lawsuit -- even apparently if the victim chose freely to sit five feet from a child throwing projectiles. This incident is just the kind of example that fuels the public perception that the legal system in America is available for any ordinary life risk gone awry, even if it means forcing a 13-year-old to hire a lawyer.

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What's missing in American justice is a way to draw a legal line between a valid claim and an invalid claim. To feel free, people need courts to act as gatekeepers of right and wrong. Juries don't have the authority to set legal precedent, and only render verdicts after years of litigation. The only cure is this: Judges must take the responsibility to make legal rulings of who can claim what. Those rulings can set precedent, be rationalized by appeals, and provide the predictability that is the very essence of the Rule of Law.

Here is a model code that would compel judges to take this responsibility:

  1. Judges shall take responsibility to draw the boundaries of reasonable dispute as a matter of law, applying common law principles and statutory guidelines. In making these rulings judges shall consider the potential effects of claims on society as a whole. (Judges must understand that lawsuits establish the boundaries of everyone else's freedom.)
  1. Every complaint and answer shall state with particularity the facts and legal theory on which it is based. No complaint shall be served on an opposing party until it has been reviewed by the court. (See Don Elliott's recent "America the Fixable" essay, "Lawsuits Should Not Be a Free-For-All.")
  1. Judges shall move cases towards trial at the soonest practical time, and limit discovery to documents and witnesses likely to have a material bearing on the outcome of the case. (See Rebecca Kourlis's recent "America the Fixable" essay, "5 Steps for Fixing the Civil Justice System.")

These responsibilities would radically change America's laissez-faire approach to justice--"Hey, why sue for $10,000, let's make it $10,000,000." Justice is not supposed to be a game. Justice is supposed to be the arbiter and repository of our values of right and wrong. "The first requirement of a sound body of law," Justice Oliver Wendell Holmes, Jr., stated, "is that it should correspond with the actual feelings and demands of the community." That's why judges in most other developed countries do what this model code requires.

Judges say they don't want to be activist. But there's a difference between an activist judge who usurps the legislature--say, ordering bussing of students--and a judge who actively draws the boundaries of what people can sue for. Justice is supposed to be predictable, not, as Professor George Priest observes, "an engine of inconsistency."

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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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