Somewhere far away, in a land not studied by Professor John Goldberg, there may be a legal system that denies injured people redress for injuries. Flipping through the yellow pages here in America, however, there seems to be heavy traffic in the commerce of bringing lawsuits for almost any setback in life.

Many Americans seem to be scared, not of losing access to justice, but of being sued when they did nothing wrong. Because of legal fear, teachers will no longer put an arm around a crying child. Businesses no longer give references. Defensive medicine is standard operating procedure, squandering billions when society is suffering from a crisis of affordability. Federal courts are flooded with employment litigation. Teachers have trouble maintaining order in the classroom. Field trips are cancelled, and athletic equipment has been ripped out of playgrounds. Camp counselors are told not to put suntan lotion on young children. Silly warnings blanket consumer products.

Fear of lawsuits has become a defining feature of American culture. The reason is that Americans no longer trust our system of justice. According to a recent Harris poll, 83% of Americans believe it’s too easy to bring a legal claim. And only one in six people trust American justice if someone brings a baseless claim against them. I guess law reviews don’t strive to be windows onto the real world, but there’s something slightly insidious about an article that dives deeply into a subject on an unspoken assumption that is, more or less, backwards—like talking about the perils of a drought in the middle of a monsoon.

Most disputes, every good lawyer knows, turn on the frame of reference. It depends on how you look at the world. I’ve noticed that most law professors feel defensive about the lawsuit culture that has emerged over the last few decades. It’s easy for them to dismiss tort reform as corporate self-protection, and thus to ignore the other symptoms. Professor Goldberg seems to be part of this rear guard action.

The article seems to be intended as a shot across the bow to tort reformers that they’d better not go too far. But, except for a Virginia statute that puts a ceiling on medical malpractice damages, Professor Goldberg never actually describes a reform that he thinks has drifted into his constitutional danger zone. Most tort reforms have been modest—adjusting rules like joint and several liability that themselves are modern inventions. Placing limits on the noneconomic portion of damages—which otherwise are standardless—is also a routine legislative function (as seen in workers' compensation laws) and even constitutionally required (as seen in recent rulings on punitive damages by the Supreme Court). Berkeley Professor Robert Kagan, an authority on comparative litigation systems, has observed, that tort reform has “only nibbled at the edges,” a conclusion I share.

Professor Goldberg puts his magnifying glass over a straw man—the spectre of legislation that “completely disallows redress to a person . . . as a result of conscious or reckless mistreatment by another”—and then spends eighty pages constructing a constitutional right out of fragments of legal history. Let me concede, at the outset, that tort law is a worthwhile structure for society, and that legislation that defines its scope, like all legislation, must bear a rational relationship to a legitimate public purpose. But Professor Goldberg means to do more than reaffirm those general rules.

Professor Goldberg’s thesis is that there exists a constitutional “right of redress” superior to the authority of legislatures—that a claimant’s individual interest should take precedence over what he terms, somewhat dismissingly, as “utilitarian” considerations. But lawsuits are not just a matter of cost-bearing policy. Lawsuits also have impact, as Derek Bok has observed, 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. Why take the risk? Professor Goldberg sees a tort claim mainly as a matter of the rights of the injured person. But what about the rights of the countless children who want to play on the seesaws?

“Anyone who takes history seriously,” Professor Goldberg asserts, “will find it difficult to disavow the existence of a federal right of victim access to what we today know as tort law.” Before we take tort law away from common law pragmatism and legislative politics and put it on the constitutional altar, let’s remember that most tort law is a relatively recent invention—negligence didn’t even exist as a cause of action until the mid-nineteenth century, and, even then, the fellow-servant rule made it difficult to recover. The presumption was no recovery—“loss from accident,” as Holmes put it, “must lie where it falls.” Even today, there are harms that are not compensable at all—public utilities, for example, are not liable for damages caused by power blackouts. Professor Goldberg purports to mine a rich vein in English common law. But he ignores rulings by the Appellate Committee of the House of Lords, directly on point, which hold that even in tragic circumstances the predominate consideration is the interest of the broader public.

It would have been useful if Professor Goldberg had actually described what he meant by denial of redress to justice. If he means, as I suspect, that juries should decide standards of care in each case—not judges making rulings of law—then he has glossed over what I believe is the core flaw of current orthodoxy. Is civil justice really supposed to be “democracy in action,” as former Senator John Edwards described it? Or are verdicts supposed to turn on consistent application of the rule of law? “The one characteristic of every legal system we respect,” Professor Eugene Rostow once said, “is that similar cases be decided alike.” Today’s legal system not only tolerates, but arguably encourages, wildly disparate results for the same conduct. That’s why legal fear has infected ordinary daily dealing.

Professor Goldberg’s article starts with an incorrect premise (that we’re in danger of closing the courthouse door), relies on critical assumptions without explanation (what he means by redress to justice), and largely ignores how an “open season” approach to justice diminishes the freedoms in broader society. Tort law involves balancing of the interests of numerous constituencies, including claimants, defendants, the broader public and other public policy considerations. It’s hard to imagine an area less susceptible to constitutional rigidity.

Philip K. Howard is a partner at Covington & Burling, and is the founder and Chair of Common Good, a bipartisan coalition dedicated to restoring common sense to American law.

Preferred Citation: Philip K. Howard, A Remedy Without a Wrong, Yale L.J. (The Pocket Part), Dec. 2005, http://yalelawjournal.org/forum/a-remedy-without-a-wrong.