“Making Civil Justice Sane”

by Walter Olson on June 30, 2006

In the Manhattan Institute’s City Journal, Philip K. Howard, president of Common Good and a longtime friend of this site, contributes an essay on fixing our litigation system. Among his topics: the need for a robust principle of assumption of risk; lessons from the U.K., where a “compensation culture” has spread despite a set of legal procedures that is the dream of reformers on this side of the Atlantic; the role of summary judgment and Daubert review; and the role of predictable law in maintaining the principle of the rule of law (Spring).

{ 3 comments }

1 Dr. Mary Johnson 06.30.06 at 10:02 am

How about prosecuting civil perjury as the crime it is?

2 AM 06.30.06 at 4:50 pm

It’s ironic that the case applauded by Mr. Howard as a cure is actually part of the problem.

In that case, the question was: Did Cheshire county have the right to maintain a lake, which was accessible to the public, and in which people had been previously injured? In other words, should they have made this lake inaccessible to the public? (Note the plaintiff was someone paralyzed for life due to an injury in this lake.)

The answer to this question is a black and white one. Either yes, or no. To get this answer, we go to the law, which was written by the judge.

What law did the judge write? The judge said such cases should be decided by balancing the “social value” of the lake, with the risk of injury.

Unfortunately, this is a subjective rule.

It will not stop lawsuits, because plaintiffs can’t predict how a judge will balance the “social value” with the risk. The only way to know, is to sue and have a judge do the balancing test, using his subjective notions of “risk” and “social value.”

3 TC 07.04.06 at 1:06 am

“Did Cheshire county have the right to maintain a lake, which was accessible to the public, and in which people had been previously injured?”

Do they have roads as well?

Has a county sheriff or deputy ever shot and wounded or killed a citizen of the county?

At what point in time did the county become our nanny?

“The judge said such cases should be decided by balancing the “social value” of the lake, with the risk of injury.”

Not a new LAW, just an observation by a REAL human being who happens to also be a member of the bar.

YOU do not have the right to assume personal safety anywhere today. And thanks to SCOUS not even in your own home now!!

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