America the litigious, land of the lawyer's fee

Americans are increasingly resorting to the courts. The biggest loser is the average citizen, who must foot the bill.

A New York actress and her doctor husband pay a New Year's Eve call on his parents. Outside the in-laws' door, the actress slips on ice and breaks her ankle. Her response? She sues them, seeking to mine the cache of cash provided for such accidents by their insurance. Her in-laws violated her right to amble injury-free along the sidewalks of Manhattan's Gramercy Park. They must pay.

Call it the American disease: that inflated sense of self that takes anything, including a boss's decision to fire or a poor mark at school, to be an intolerable abuse of one's rights; that propensity for courts to tolerate and trial lawyers to support citizens' efforts to convert personal misfortune or social inequity to financial gain.

The trend of rampant litigation has made America a costlier and more anxious place - and it is getting worse. Topic A in the celebrity news department this past weekend was the question of whether the husband of the actress Sharon Stone would sue the Los Angeles zoo because he was bitten on the toe by its Komodo dragon. (Never mind that he chose to step into the reptile's cage.) This week, President George W. Bush will be battling an effort by Congress to create wider "patients' rights" so that individuals may collect further millions in damages from healthcare providers should their medical treatments fail.

What caused the Land of the Free to make a caricature of itself? Many observers date the change to the 1970s, when law schools churned out record numbers of ambulance-chasing attorneys. But the roots of America the Litigious run deeper. As Philip K. Howard, author and former adviser to vice-presidents Gore and Dole, points out, historical forces have long been driving America courtward.*

The first is Americans' inbred preoccupation with the rights of the individual. The nation, after all, was born through its rejection of an arbitrary authority and a fervent desire to prevent the rise of anything like England's Court of the Star Chamber. As Alexis de Tocqueville noted more than a century and a half ago, American legislatures and governments over-compensated by creating "a network of small complicated rules, minute and uniform" that tended to reduce citizens and even judges "to nothing better than a flock of timid and industrious animals".

For many years, several powerful checks contained the "rights" impulse. The first was that the very definitions of rights and liberties used to be much narrower: freedom was a "negative liberty" - the freedom to be left alone. American case law backed that commonsense view, reinforcing basic freedoms such as free speech but dismissing outright the sort of far-reaching rights that we hear about today. As judge Oliver Wendell Holmes Jnr wrote of the dismissal of a Boston policeman: "Petitioner may have the constitutional right to talk politics but he has no constitutional right to be a policeman."

Then, after the second world war and especially in the 1960s, came a national crisis of confidence. Governments, especially local governments, were assailed for patronage and corruption. As a result, lawmakers penned yet more rules, vastly reducing the discretion of the individual mayor, town councilman or water authority.

Courts and judges also came under suspicion. The wrongs that they had perpetuated, especially over the issue of race, fuelled a national sense that the civil rights of individuals must be paramount and that the authority of judges to determine what was fair in individual cases must be reduced commensurately. The de facto result was that no one was in charge, leaving various societal impulses to run amok.

Thus, for example, the consumer rights movement was free to expand. Congress, state legislatures and municipals wrote a plethora of exaggerated laws to ensure safety: all cars must have airbags, all homes must be free of lead paint, and so on. Parents were free to allege sexual abuse of their children at school; potential threats to the rights of the child outweighed the assurances of the teacher that he had done nothing wrong.

Teachers, a number of whom later turned out to be innocent, were hastily jailed in what Mr Howard calls "a paedophilic version of the Red Scare". Playgrounds could no longer have sandboxes or climbing equipment, because a single child might hurt himself. (This, by the way, is one reason London's Princess Diana memorial playground is so popular with US tourists. It boasts both an enormous sand playing-field and a 3m-high galleon mast for climbing - exotica banned by many a US town.)

Some of the worst transgressions against common sense have transpired in the workplace: today city officials may not fire their policeman, regardless of whether he has proven himself incompetent. Private sector employers must live with the fear that they may be sued.

The biggest losers, though, are average US citizens. Suburbs must double property taxes to meet legal bills; a hospital performs unnecessary tests to avoid litigation, driving up insurance premiums. Subtler, but in its own way as damaging, is the general impoverishment of the culture. Americans may be free - but not to eat unpasteurised Brie or to ride a merry-go-round.

Yet calls for a more powerful judiciary antagonise both Republicans and Democrats. Conservatives abhor the idea of strong judges because they might open the door to legal activism; the Democratic party does not like them because "rights above all" has become the party's rallying cry.

Still, the need for change is clear. In avoiding the Star Chamber, America has recreated it: a star chamber of rules and rights, not privy councillors this time. But despotic nonetheless.

* The Lost Art of Drawing the Line, Philip K. Howard, Random House

© Copyright 2001 Financial Times

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