January 13, 2009

America's Litigation Culture: Stifling Freedom and Devaluing Personal Responsibility

Over the weekend, the Washington Post published an op-ed column by George Will entitled, "Litigation Nation." This column is based on Philip Howard's Life Without Lawyers: Liberating Americans from Too Much Law. Mr. Will notes a few examples of the absurdities that result from a culture that embraces "the theory that anyone should be able to sue to assert that someone is culpable for even an idiotic action by the plaintiff, such as swallowing a fishing lure."

The article leads with a story of police being called to a Florida school in order to deal with a disorderly student, which resulted in a 5-year-old, 40 pound female student being led away in handcuffs. The reason for the police:
"No official at the Florida school would put a restraining arm around the misbehaving child lest he or she be sued, as a young member of Teach for America was, for $20 million (the school settled for $90,000), because the teacher put a hand on the back of a turbulent seventh-grader to direct him to leave the classroom."
Mr. Will cites other similar atrocities. But lest you read the above quote and think, "What are the odds of that little girl's parents taking the teacher or the school to court?", he provides the necessary context noting:
"A 2004 survey reported that 78 percent of middle and high school teachers have been subjected to legal threats from students bristling with rights. ... [Broward County, Fla] settled 189 playground lawsuits in five years."
At the end of the column, Mr. Will gets to the results that accompany this litigation culture.

"Now legal self-consciousness is stifling the exercise of judgment. Today's entitlement culture inculcates the idea that everyone is entitled to a life without danger, disappointment or aggravation. ...

Law is essential to, but can stifle, freedom. ... The land of the free and the home of the brave has become 'a legal minefield' through which we timidly tiptoe lest we trigger a legal claim. What should be routine daily choices and interactions are fraught with legal risk.

Time was, rights were defensive. They were to prevent government from doing things to you. Today, rights increasingly are offensive weapons wielded to inflict demands on other people, using state power for private aggrandizement."

Mr. Will and Mr. Howard make a valuable and seldom addressed connection between the growing litigation culture and the steadily decreasing value that that culture places on personal responsibility and sound judgment.

With Obama taking office and the Democrats in control of both houses, the trial lawyers will undoubtedly seek to expand this culture and reap the benefits of their political contributions. In fact, it is already happening.