President's Perspective
Civil Justice - Exploding the Myths
By David A. Saichek
Wisconsin lawyers can be proud of U.W. Law School Professor Marc Galanter. He employs solid research to combat
ignorance and destroy myths. He identifies propaganda leveled at the
American system of justice, investigates its origins and conducts
well-regarded research to find out if the assertions are true or false.
1
- Litigation is undermining our ability to compete economically.
False
- Juries routinely award large punitive damages. False
- Runaway juries make capricious awards to undeserving claimants.
False
- America is the most litigious society in history. False
- The courts are filled with frivolous lawsuits.
False
Other myths exploded by Prof. Galanter:
- America has 70 percent of the world's lawyers. False
- The legal system costs Americans 300 billion dollars a year.
False
- Products liability has expanded into a self-inflicted competitive
disadvantage and overloads our justice system (and causes measles).
False
"Public discussion of our civil justice system resounds with a litany
of quarter-truths."
- Prof. Marc Galanter
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Americans certainly do use their courthouses. That is due to our
nation's history and our firm emphasis on individual rights and
liberties, as well as our respect for a system of laws. 2
Galanter states that "Public discussion of our civil justice system
resounds with a litany of quarter-truths." 3
We hear about a "litigation explosion" which, if present at all,
certainly is not due to tort litigation. In 1994 products liability
suits as a percentage of the federal civil caseload was 9.42 percent.
The increase in products litigation in the 1980s was largely accounted
for by suits involving asbestos. Except for asbestos cases, products
liability filings in federal courts declined dramatically during the
1980s. 4 Appreciable caseload increases are
really attributable to criminal cases in state and federal courts, plus
domestic relations and juvenile caseloads in state courts. Since 1984
criminal filings have increased 35 percent in state courts and 28
percent in federal courts. In state courts juvenile caseloads rose 59
percent and domestic relations cases rose 65 percent between 1984 and
1994. Although our courts need more resources to handle increased
demands, as a nation we continue to commit less than 1 percent of our
total annual combined federal, state and local government spending to
judicial and legal services. 5
Seventy-eight percent of state court caseloads are comprised of
criminal, traffic, juvenile and other matters. Only 22 percent are civil
(other than traffic). Of that 22 percent, one quarter are domestic
relations, and most of the balance are disputes over money. Only 6.2
percent of civil cases are in the tort category. Congress and the state
legislatures annually enact more comprehensive and intrusive laws. Then
almost every segment of American opinion blames lawyers for the
resulting litigation. Lawyer-novelist Richard Dooling says this is "...
like starting a war and then blaming the casualties on the growing
number of morticians." 6
Dooling points out that in the first 70 years of this century
Congress enacted 25 laws regulating employment. Then between 1970 and
1993 it passed 72 more laws, including indecipherable tomes such as
ERISA, OSHA and ADA. New and hopefully better laws have been passed
governing the environment and health care. So is it any surprise that
litigation has "exploded" in the areas of discrimination, employment,
environmental cleanup and health care? We all hope these laws will
curtail corporate abuses and confer rights upon under-protected
citizens. But it should come as no surprise that new and complex laws
spawn litigation.
Why does the public (and even some lawyers) lap up viciously invented
lies? Why does corporate America spend (fraudulently) their
shareholders' dollars on poisoning the pool of jurors? Prof. Galanter
puts the answer discreetly:
"Increasingly, ordinary people can use this system to hold to account
the managers and authorities of society. This is what fuels the sense of
outrage of so many well-placed critics because it challenges the leeways
and immunities enjoyed by those in charge." 7
May I translate that into my less elegant style of expression? Rich
and powerful people want more money and more power. They resent
governmental regulations brought about by their own abuses and avarice.
They detest lawyers who help ordinary people stand up for their common
law and statutory rights.
Can we change the powerful and greedy? Probably not. But we can
recognize and support the efforts of law schools and other institutions
that evince a genuine concern for the truth. We can, as Prof. Galanter
puts it, "... contribute to a cumulative and reliable body of knowledge
about the system." We can recognize that civil justice issues involve
both value judgments and political choices. Unbiased research resulting
in an increased knowledge base can, as suggested by Prof. Galanter,
rescue us from a debate dominated by illusory issues and demonstrably
false "facts."
Endnotes
1 See generally, Marc
Galanter, Reading the Landscape of Disputes: What We Know and Don't
Know (and Think We Know) About Our Allegedly Contentious and Litigious
Society, 31 UCLA L. Rev. 4 (1983); Marc Galanter, The Day After
the Litigation Explosion, 46 Md. L. Rev. 3 (1986); Marc Galanter,
The Life and Times of the Big Six: Or, The Federal Courts Since the
Good Old Days, Wis. L. Rev. 921 (1988); Marc Galanter, Lawyers
in the Mist: The Golden Age of Legal Nostalgia, 100 Dick. L. Rev.
549 (1996); Marc Galanter, Predators and Parasites: Lawyer-bashing
and Civil Justice, 28 Ga. L. Rev. 633 (1994); Marc Galanter,
News from Nowhere: The Debased Debate on Civil Justice, 71
Denv. U.L. Rev. 77 (1993); Marc Galanter, Case Congregations and
Their Careers, 24 Law & Soc'y Rev. 371 (1990); Marc Galanter
& David Luban, Poetic Justice: Punitive Damages and Legal
Pluralism, 42 Am. U.L. Rev. 1393 (1993); Marc Galanter, The
Civil Jury as Regulator of the Litigation Process, U. Chi. Legal F.
201 (1990).
2 Marc Galanter, "Pick a Number,
Any Number," Legal Times, Feb. 17, 1992.
3 Marc Galanter, "Public View of
Lawyers", Trial, April 1992, at 71.
4 Product Liability: Extent of
"Litigation Explosion" in Federal Courts Questioned, GAO/HRD-88-36BR
(1988).
5 Facts About the American Civil
Justice System, American Bar Association, 1996, pp. 2, 3.
6 Richard Dooling, "Too Many
Lawyers? Wait Until 2005," New York Times, Saturday, Feb. 22,
1997.
7 Galanter, "Public View of
Lawyers," supra note 3, pg. 73.
Wisconsin Lawyer