of our nation’s civil litigation system may cause a chuckle. But the broader issue is an important one: there are real costs to today’s explosion of lawsuits, and while that money may appear to come out of the pockets of wealthy, faceless corporations, ultimately all Americans end up paying the bill.
Over the last half-century, the share of America’s gross domestic product consumed by litigation costs has tripled, a proportion that would be higher if our economy weren’t such a powerful engine. In concrete terms, the U.S. tort system cost $12 per citizen in 1950 but by 2002 has skyrocketed to $807 per year for every man, woman and child in the country. It’s become a "lawsuit lottery," in which a handful of plaintiffs walk away with staggering, multi-million dollar verdicts, while the rest of us pick up the tab.
In fields like medicine, the fear of being sued leads doctors to practice "defensive medicine" by ordering every conceivable test no matter how remote risk levels might be. This drives up costs at a time when rising health insurance premiums are forcing more and more workers to drop their coverage because they simply can’t afford it. Even patients pay a price -- millions of pregnant women, for example, have undergone unnecessary cesarean section deliveries their doctors would not have elected but for the threat of a lawsuit.
Walter Olson, a scholar at the Manhattan Institute, attributes the rapid escalation of tort litigation to specific changes in courthouse procedures instituted in the 1960s and 70s. One was the liberalization of rules of discovery, making it much easier for plaintiffs’ attorneys to go on legal "fishing expeditions." Another permitted class action lawsuits to include "plaintiffs" who don’t even know they are parties to the case. A third was the dilution of the "assumption of risk" doctrine -- the notion that a baseball spectator, for example, by virtue of his familiarity with the game, should not be able to sue if hit by a fly ball.
Not surprisingly, making it easier to sue has resulted in a lot more lawsuits.
Of even greater concern is the more recent phenomenon of trial lawyers, often joined by state attorneys general, filing lawsuits aimed at changing public policy in ways that would never succeed in Congress or state legislatures, where elected representatives are accountable to voters. Some such suits have resulted in new regulations, increased taxes and the legalization of "gay marriage," to cite just a few examples. One billionaire trial lawyer, asked if members of his profession were trying to run the country, replied, "Somebody’s got to do it."
Clearly this is not what the founders had in mind. Exploding litigation threatens not just our economy but our very cultural norms, like the traditional definition of personal responsibility.
Congress has considered a number of worthwhile measures over the past few years: creating a "loser pays" system comparable to most other industrial nations’; capping the amount that can be awarded in punitive damages (penalties over and above the amount needed to compensate genuine victims); making it harder for class action lawyers to "judge shop" for the most favorable venue; and prohibiting lawsuits based on the ridiculous assumption that legitimate gun manufacturers can be held liable for crimes committed using their products.
These reforms command majority support in both chambers of Congress, but like so many other important ideas, they have fallen prey to obstructionism by a minority of liberal Senators, whose frequent use of the filibuster coincides with their increasing dependence on trial lawyers for campaign contributions. Senator John Kerry’s selection of a trial-attorney-turned-politician for his running mate in this presidential election is yet another illustration of this growing influence.
No serious public figure has ever questioned the fundamental principle that individuals who have been wronged deserve their day in court. But the growing volume of frivolous lawsuits, and their increasing impact on our economy, culture, and government, cry out for reform that restores a common-sense balance between this basic right and our equally basic principle of personal responsibility.
Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.