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A Remedy Without a Wrong Philip K. Howard
The Pocket Part, December 2005 In the December issue of The Pocket Part, a companion to The Yale Law Journal, Common Good Chair Philip K. Howard responds to the recent article by Vanderbilt Law Professor John C. P. Goldberg, “The Constitutional Status of Tort Law.” While conceding “that tort law is a worthwhile structure for society,” Howard takes issue with Professor Goldberg’s view of tort claims as mainly matters of the rights of the injured. “[L]awsuits are not just a matter of cost-bearing policy,” Howard notes. “Lawsuits also have an impact … on the daily choices of others in society. If Johnny can pursue a claim because he fell off a seesaw, pretty soon towns around the country will remove (and have removed) all the seesaws. . . . But what about the rights of the countless children who want to play on the seesaws?” Americans, Howard relates, are afraid – but not because they fear “losing access to justice,” but rather because they feel they can be “sued when they did nothing wrong.” He cites a recent Harris survey which shows that “83% of Americans believe it’s too easy to bring a legal claim” and that “only one in six people trust American justice if someone brings a baseless claim against them.” This fear has served as a rot on our common institutions, such as our schools, where teachers no longer comfort a crying child with a hug, and our hospitals, where doctors practice defensive medicine – to the tune of billions of dollars – to avoid being sued.
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