Tort reformers salute the Union Jack

Yesterday, after suffering through a few of Philip Howard's op-eds on the legal system, I was struck once again by a theme that reappears occasionally in the tort reform literature: a near-fawning desire to emulate the British. I've never quite understood this, but many of the tort reform movement's leading lights have, in my humble opinion, an unhealthy obsession with Mother England--and not in a "Lady Di" fan-club kind of way.

I have nothing against the British; their food is lousy, but they did produce Billy Bragg. But people like Howard frequently suggest that Americans would all be better off if our legal system were more like England's, especially if we replaced our messy, raucous, occasionally unpredictable but enormously democratic civil juries with guys in powdered wigs. The Manhattan Institute's Walter Olson, when he's not contra dancing and playing the accordion, pines away in print for British rules like loser pays, to force losing parties in a lawsuit to pay the other side's legal costs, bans (now eroding) on contingency fees, and other hurdles that would keep the riff-raff out of the hallowed chambers of the courthouse.

My knowledge of this country's origins is spotty--due in part to an Ogden High School basketball coach masquerading as an American history teacher--but I do recall that Americans shed a lot of blood to get away from the British system and its imperial judges, and that the American Constitution was nearly scuppered because it didn't originally allow for a civil jury trial. The jury, with all its flaws, is still the "heart and lungs" of the American legal system. We should leave the wigs to the Queen's subjects across the Atlantic.

Comments

[Ware V. Wendell]

Attacks on contingent fees and the jury system are bent on turning court houses into "gated communities" where only the richest of the rich can afford to litigate.

It takes a lot of fear mongering, Orwellian double speak, and expensive corporate PR to trick people into feeling good about signing away their legal rights.

My favorite is when the professional apologists -- who are bankrolled by Big Insurance, Big Tobacco, and the Chamber -- try to steal away the mantle of "fairness" and "responsibility," shedding crocodile tears for those who have been "legitimately harmed" while advocating for arbitrary, one-size-fits-all tort deforms that strip away rights across the board.

People are starting to awaken to the reality of the situation -- and just in time. As Lincoln -- a great president and trial lawyer -- said, "You can't fool all of the people all of the time."

Tories, go home. You're un-American.

[David Nieporent]

Attacks on contingent fees and the jury system are bent on turning court houses into "gated communities" where only the richest of the rich can afford to litigate.

Funny, but when the left looks at European health care, European Kyoto policies, European opposition to capital punishment, or European pacifism, they see policies for the U.S. to emulate.

But suddenly, when someone suggests a minor step towards European legal processes, we're trying to oppress the poor.

[Anirban]

"Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket?"

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

"Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer."

Is this the same Lincoln Wendell is talking about?

[Webdude]

David, that's truly your best response?