One of the central themes of the conversation was the effect of civil litigation on both the law and the culture of society. Philip Howard, a partner at Covington & Burling and author of Life Without Law: Restoring Responsibility in America, posits that the rule of law should not allow people to sue for whatever they want, but rather draw the boundaries of who can sue for what. According to Howard, the problem with the current civil litigation system is not the quantity of cases brought. “There are not that many crazy and frivolous lawsuits and they don’t usually succeed,” Howard said. “But the harm of these lawsuits is to the culture…. People tiptoe through the law all day long.” For example, Howard said that doctors are often over protective and take unnecessary precautions for fear that they will face a grueling medical malpractice lawsuit. “Law has to set the boundaries in order for people to feel free in their daily lives,” said Howard.
Steven Croley, a professor at the University of Michigan Law School, agreed that civil litigation should be judged on its social consequences, but emphasized that while these consequences can be negative, as in the example of defensive medicine, there can positive effects, such as antitrust litigation protecting the integrity of markets. Croley said that the civil litigation system is often judged on four myths: that juries make the system dysfunctional; that plaintiffs routinely win in civil litigation; that damage awards are high; and that punitive damages are out of control. "My worry is that our perceptions are informing policy responses," Croley said, "when the perceptions are themselves misplaced."
Addressing whether there is too much litigation, Inez Milholland Professor of Civil Liberties Burt Neuborne cautioned against taking too much control out of the law’s and court’s hands. “A system that de-legalizes lots of things, that removes law from playing significant roles in peoples lives and removes courts from significant roles in adjudication of disputes, is not a system that I think many of you would find appealing.” Neuborne suggested that instead of overhauling the entire system, some smaller modifications could help, including capping lawyers’ incomes at $1 million per year and instituting cost shifting in determining attorney’s fees in class action lawsuits. Neuborne also called for the resurrection of lawyering ethics that he says have gone missing; instead of doing what they think is right, Neuborne said, too many lawyers are doing what they think they can get away with while maximizing their individual gain. "The reason so many lawyers are afraid to the right thing now is they're afraid the other person won't, and they will drive them down, so that we're in a downward spiral," said Neuborne. "Let's get out of the downward spirial through collective action."
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Posted March 5, 2010