really like this wall street article:
Law is supposed to uphold social norms of right conduct. Oliver Wendell Holmes Jr. said that this was “the first requirement of a sound body of law.” By making people potentially liable for their negligence, law provides incentives for reasonable conduct. But the converse is also true. Allow lawsuits against reasonable behavior, and pretty soon people no longer feel free to act reasonably.
Welcome to America. Mud and reeds have been dumped on natural and necessary human activities throughout American society. Playgrounds have been stripped of all physically active equipment, like monkey bars, with the effect, among others, of contributing to a crisis in childhood obesity. Health-care costs are skyrocketing, in part because paranoid doctors are in the habit of ordering unnecessary tests to provide a possible defense in case there’s a lawsuit. Because of fear of legal claims, teachers can’t put their arm around a crying child.
Lawsuits are easy. Whenever anything goes wrong. It’s easy to come up with a theory of what might have been done differently. There could have been a warning. There could have been more supervision of the playground. The doctor could have ordered an MRI for the headache, just to make sure. Exposing people to liability against the standard of hindsight, however, creates not a safer world but one in which people simply avoid socially useful activities. Obstetricians quit. Seesaws disappear. Businesses stop giving references. The City of New York did, in fact cut the limbs off trees near playgrounds so children would not be tempted to climb them.
All life’s activities involve risk, and therefore the inevitability of accident and disagreement. The role of law is not to provide a consolation forum for those who have felt the misfortune of risk, but to support the freedom of all citizens to make reasonable choices, including taking reasonable risks. That requires judges, wherever someone makes a claim, to balance the seriousness of the risk against the social utility of the claim. Those rulings are the building blocks of our common law system, which, the English Law Lords recently reminded us, “is just the formal statement of the results and conclusions of the common sense of mankind.”
Judicial activism has a bad name. It’s one thing for judges to impose affirmative legislative mandates, like forced busing, but far more disruptive for judges to sit on their hands and let private litigants sue for the moon. Want to fix the legal system? Shine the spotlight on the judges.
The Wall Street Journal, October 22, 2003 p. A20
