Friday, June 22, 2007

Litigation Breeding

Philip K. Howard, founder of Common Good, on how litigation has gone astray. An excerpt:

Every time something goes wrong -- every single time -- it is possible to make a claim that something more should have been done. "There should have been a handrail. Someone should have offered to help me up. There should have been a warning." Hindsight always affords the opportunity for infallible logic.

The role of law is not to allow anyone to sue for anything, but to draw lines of what's reasonable. Do people assume the risk of activities like stepping onto the dais? That needs to be decided as a matter of law. Otherwise people don't know where they stand. They become fearful in daily dealings. No one is drawing these lines today. Justice is, literally, out of control. Cases are decided jury by jury, without precedent or legal guidance.

Judges must take back control of the courtroom. Litigants will always push the envelope. They can't help themselves. Our founders believed that "man was an unchangeable creature of self-interest," historian Richard Hofstadter observed. That's why it would "not do to leave anything to his capacity for restraint."

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