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Vol. 70, No. 5, May
1997
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 |
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. |