In recent trial testimony, Harvard and other selective schools claim that the only way they can maintain adequate racial diversity is to use large racial preferences to admit a great many more black (and brown) students than would otherwise get in based on their academic performance.

A person of ordinary curiosity might wonder: Why is that? Just what is the state of black academic performance, after more than 40 years of racial preferences? Is it improving? How soon might significantly more black students gain enough ground on whites and Asian-Americans to win admission to selective universities based on merit? And what about the Supreme Court’s unanimous assertion in 2003 that “[e]nshrining a permanent justification for racial preferences” would be unconstitutional?

The news media, like the universities, do not ask questions like these because they cannot accept honest answers, which include the following inconvenient truths:

–The state of average black academic achievement, from kindergarten through graduate schools, is extremely discouraging — far behind that of Asian-Americans and whites, and substantially behind that of Latinos.

–Worse, black academic achievement in K-12 schools has not improved noticeably relative to that of whites or Asian-Americans in about 30 years, and has in some ways deteriorated, despite the growth of the black middle class. There is little reason to believe this will change in the foreseeable future.

–For those reasons, the tacit meaning of “diversity” has morphed into “racial preferences forever” in the minds of many university officials and journalists

These well-documented but disheartening facts are treated as taboo by academia, the media, and other establishment institutions. But the taboo is unhealthy. “Closing the racial achievement gap is the most important civil rights battle of the twenty-first century,” as the distinguished African-American Harvard sociologist Roland Fryer wrote in 2012.

And as long as the nation shrinks from facing the racial academic gaps, they will persist, and perhaps grow larger – as did the white-black gap in 12th grade reading between 1992 and 2015 (the last year for which comparative data are available).

The racial gaps make it imperative to find effective ways to improve the academic achievement of black (and Latino) children – and to end policies that may make hold kids back or diminish their incentives to excel academically.

In this regard, there is evidence suggesting that far from being part of the solution, racial preferences in college admissions are part of the problem with K-12 black education.

A few decades ago, it was widely assumed that better education, the expanding black middle class, and racial preferences themselves would bring the academic performance of black (and other minority) students closer to parity with that of whites and Asian-Americans. Racial preferences were viewed as a temporary expedient that would fade away.

But these hopes looked forlorn as long ago as 2003, when Justice Sandra Day O’Connor wrote for herself and four other justices in Grutter v. Bollinger: “[T]he number of minority applicants with high grades and test scores has indeed increased. … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further” racial diversity in selective college enrollments.

The claimed increase in high-end achievement by minority applicants was wishful thinking, for which Justice O’Connor cited no data and not one serious study. As I wrote in 2003, at the time there was “overwhelming evidence that the racial academic gap [was] enormous and … [had] been growing for the past 15 years [since about 1988].

This reversed a trend of rapid progress in closing the racial gaps from the 1950s until about 1988. But over the three decades since 1988, there has been no significant decline in the test score gap between both black and Hispanic high school seniors and their white counterparts.

There are, of course, many brilliant black students and leaders. And most black and Latino students at Harvard and other elite schools have academic records much stronger than those of most white students at less selective colleges. But the vast majority of African-American students (and to a lesser extent Latinos) are not academically prepared to do well either in high school or in the highly selective colleges eager to recruit them. The big question is why.

Racial academic gaps are not shrinking despite decades of racial preferences

Still more disheartening than the size of the racial gaps is the ample evidence that they have not gotten appreciably smaller in some three decades.

“Even after decades of affirmative action, black and Hispanic students are more underrepresented at the nation’s top colleges and universities than they were 35 years ago, according to a 2017 New York Times analysis. The share of black freshmen at elite schools is virtually unchanged since 1980. Black students are just 6 percent of freshmen but 15 percent of college-age Americans.”

(The paper said that blacks and Hispanics have gained more ground at less selective colleges and universities.)

Strikingly, the Times did not explicitly acknowledge or quantify the vast racial gaps in academic performance, such as the fact that the average black 12th-grader is academically at the same level as the average white eighth-grader. And not a word about the massive evidence that the home environments of so many African-American kids are not conducive to education.

Nor did the Times attempt to explain, other than blaming unequal K-12 schools, how decades of increased public school spending and of racial preferences in college admissions could have failed so utterly to bring even relatively prosperous black students — or their children – much closer to academic parity with whites and Asian-Americans by age 18.

By all available measures, despite the emergence of a black middle class, the most recent data suggest that the racial academic performance gaps among 18-year-olds applying to college are as large on average as they were about three decades ago. The black-white test score gap among high school seniors in contemporary America is comparable to the gap between 13- and 17-year-olds.

Disappointing NAEP scores

The most authoritative metrics are the relative scores of racial groups on the reading and math tests administered by the National Assessment of Educational Progress to the nation’s fourth-graders, eighth-graders, and (especially) high school seniors every two years since the early 1970s.

At the grade 12 level, for example, in math, only 7 percent of black students scored at or above the “proficient” level in 2015, the most recent year for which the 12th grade data are available, compared with 12 percent of Latinos, 32 percent of whites, and 47 percent of Asian-Americans. And in reading, only 17 percent of black students scored at or above “proficient” in 2015, compared with 25 percent of Latinos, 46 percent of whites, and 49 percent of Asian-Americans.

The only good news was that black and Latino students’ fourth-grade NAEP scores (mostly at age 9) improved relative to whites’ from the year 1992 (a 35-point white-black gap in math and a 32-point gap in reading) to 2017 (a 25-point gap in math and a 26-point gap in reading).

The white-Hispanic gaps in fourth grade scores shrunk modestly from 25 points in math and 27 points in reading in 1992 to 19 points in math and 23 points in reading in 2017.

“[A]the current rate,” wrote George W. Bohrnstedt, of the American Institutes for Research, “closing the gaps will take impossibly long. Even for Grade 4 mathematics, where progress has been greatest, it would take a century to close the gap!”

Among the more high-achieving students in each racial group, more than 5 percent of whites scored above 700 on both the math and the reading SAT tests in 2015; about 1 percent of African-Americans and Latinos did.

Part of the reason for these discouraging numbers is the lagging academic performance even of well-off black students at good schools. As Brookings scholars Richard Reeves and Dimitrios Halikias wrote in 2017: “[I]t is unlikely that the racial achievement gap can be explained away by class differences across race.”

“Income alone does not explain the racial scoring gap,” The Journal of Blacks in Higher Education reported in 2002. “Whites from families with incomes below $10,000 had a mean SAT test score that was 46 points higher than blacks whose families had incomes of between $80,000 and $100,000,” it noted. “Blacks from families with incomes of more than $100,000 had a mean SAT score that was 142 points below the mean score for whites from families at the same income level.”

All this helps explain a stunning revelation in internal Harvard data about admissions in the decade before 2012 that were unearthed by the current discrimination lawsuit: If Harvard had chosen its entering classes based on academics alone, only two-thirds of 1 percent of its students would have been African-American and fewer than 2.5 percent would have been Latino. Racial preferences account for most of the difference between those numbers and the black and Latino shares (14 percent each) of this year’s entering class.

The reasons for blacks’ academic problems and the role of racial preferences

Of course, black and Latino students’ academic problems are attributable not to any inherent character flaws but rather to inferior education – not only in school but, even more, at home and in after-school peer groups.

At home, due to cultural factors explored in books including Richard Sander’s and my 2012 book “Mismatch,” there is a lack of emphasis on studying and learning, along with too few books, too little reading, too much television, and too little effort to get the kids to school every day and on time. Black elementary school students in California, for example, are regularly truant nearly four times as often as their classmates.

These problems often stem from out-of-wedlock births to teenagers unprepared for motherhood and where no father is present. These, in turn, reflect the poisonous long-term cultural effects of slavery and past discrimination; complex, cross-cutting maladies such as welfare dependency, crime, and drug abuse; and bad individual choices. At school, too many kids are trapped in failing institutions with too few effective teachers; no option for their families to choose better schools; and powerful peer pressure to avoid studying.

Our society’s failure to improve the readiness of black 12th-graders for college over the past three decades – during which large racial admissions preferences have been the rule at selective colleges – makes it pretty clear that preferences are not helping K-12 black academic performance. Some evidence suggests that preferences may be hurting.

To be sure, racial admissions preferences give a boost to some strong black college students who have shown themselves to be more than able to compete with white and Asian-American classmates, even those who were better prepared coming out of high school. But many more black students may be harmed by racial admissions preferences both before and during college. Here are four reasons why:

First, racial admissions preferences blunt the incentives of black students to study and reinforce the pernicious stereotype that they cannot compete academically. In the words of the distinguished African-American linguist John McWhorter:

“[A]ffirmative action . . . deprives black students of a basic incentive to reach for that highest bar. … I can attest, for example, that in secondary school I quite deliberately refrained from working to my highest potential because I knew that I would be accepted to even top universities without doing so. Almost any black child knows from an early age that there is something called affirmative action, which means that black students are admitted to schools under lower standards than white; I was aware of this at least [from] the age of 10.”

Second, pressure to lower K-12 academic standards to avoid disparate rates of black failure fosters a culture of disregard for personal accountability and excuses for black failures. This is manifested by (among other things) the notion that studying is “acting white.”

Third, the focus of almost all academics, policymakers, civil rights groups, and others on perpetuating racial preferences and lowering academic standards for black students diverts attention, reformist energy, and resources from the far more urgent task of improving their educations at home and school during their first 18 years of life – “the most important civil rights battle of the twenty-first century,” in Roland Fryer’s words.

That would entail persuading young people to defer parenthood until they are ready; making long-acting contraceptives available to prevent unwanted births; fostering a culture of two-parent families; and motivating parents to stimulate their kids, read to them, and teach them to show up for school, do their homework, and avoid gangs and drugs.

A culture of good parenting must be promoted by social programs that include “experimenting [with] increasing cash transfers to disadvantaged parents with young children, improving access to quality preschool programs, pursuing paid leave policies to allow for more quality parent investment during the first years of life, teaching parents the skills they need to effectively raise their children, and so on,” in the words of Reeves and Halikias.

All that would cost a lot of money. But unlike the money that many cities, states, and courts have thrown at failing schools and that universities have spent promoting racial grievances, this money could do a lot of good.

Improving schools requires motivating academic and civic leaders, policymakers, and voters to extend the school year and the school day; attract and keep successful teachers by paying them much more; ease out ineffective teachers; energize the charter school movement; and overcome the opposition of teachers’ unions to doing any of these things. Without such reforms, experience has shown, even vast and unprecedented new spending on schools will have little impact on academic performance.

A push for more housing integration would also help. Scholarly work suggests that “housing integration – and, in particular, the lower poverty concentrations that blacks experience in integrated cities” — has substantially narrowed the test-score gap in such cities, according to “Moving Toward Integration,” a 2018 book by Richard Sander, Yana Kucheva, and Jonathan Zasloff. The reason such progress has not yet had much impact on the national test-score gap, notes Sander in an email interview, is that substantial integration is still fairly rare.

Fourth, both common sense and multiple peer-reviewed scholarly studies show that racial admissions preferences probably do even more damage to the academic achievement of African-Americans after they enter college than before. As Richard Sander and I detail in “Mismatch,” selective institutions use very large racial preferences to bring in thousands of underqualified black students without telling them that they are not close to being academically competitive with most of their classmates.

These supposed beneficiaries of racial preferences in many cases cannot keep up with the pace of instruction; get bad grades for the first time in their lives; flee from challenging to soft, easy courses that brand them as weak students in the eyes of classmates and employers; learn less than they would if they were at colleges for which they were well qualified; abandon aspirations to become scientists, physicians, engineers, or scholars; become discouraged and lose intellectual self-confidence; self-segregate with other academically overmatched black students; and, in some cases, bitterly complain that they are being discriminated against, when the problem is precisely the opposite.

The sad history of persistent racial academic gaps and preferences leading to mismatch suggests a bleak future. If present trends continue, most black students at almost every selective university in the country will continue to lag behind their Asian-American and white classmates academically for many more decades, if not longer.

Stuart Taylor Jr. is co-author, with Richard Sander, of “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It” (Basic Books 2012).

The post We Must Face Persistent Racial Gaps in Academic Performance appeared first on Stuart Taylor, Jr..

Take the angry man who sued a Washington, D.C. cleaner for $67 million in 2007 for allegedly losing a pair of his pants. The damage claim was obviously absurd. In a sensible system the judge would have tossed it out without dragging the cleaner into court or forcing him to hire a lawyer. Indeed, the plaintiff never even proved that the cleaner had lost his pants. But the courts kept the case alive for more than two years of legal wrangling, at a reported cost of over $100,000 in legal fees to the store’s struggling Korean-born owners.

Continue reading the column here.

The post Legal Feeding Frenzy appeared first on Stuart Taylor, Jr..

A big part of the reason, New York City lawyer-author-civic leader Philip Howard writes in a forthcoming book, Life Without Lawyers: Liberating Americans From Too Much Law, is that our institutions and their leaders are paralyzed by tangles of legal rules and diverted "from doing what we think is right" by fear of being unfairly hauled into court.

"We will never fix our schools, or make health care affordable, or re-energize democracy, or revive the can-do spirit that made America great," Howard writes, "unless American law is rebuilt to protect freedom in our daily choices." By this he means freeing ourselves from "the confusion of good judgment with legal proof."

"Washington is paralyzed," writes Philip Howard, by "decades of accumulated law, beyond the influence of anyone except special interests."

Reprising the themes of Howard’s best-selling Death of Common Sense in 1995, Life Without Lawyers also proposes some far-reaching remedies, designed in part to affirmatively define and protect the freedom of people in positions of authority to fulfill their responsibilities in their own way. To be published on January 12, its 191 pages are crammed with telling cases, anecdotes, and data. It brims with insights into how "rights" that were created to prevent "unfairness by those in authority" are now "guaranteeing unfairness to the common good."

Howard, who is a senior partner in the New York City office of Covington & Burling and chairs Common Good, a legal reform organization that he founded in 2002, has convinced an ideologically eclectic array of leaders that he is on to something. Life Without Lawyers carries admiring blurbs by New York City Mayor Michael Bloomberg, former Sen. Bill Bradley, former Harvard University President Derek Bok, and former House Speaker Newt Gingrich.

The book focuses especially on our schools, health care system, and lawsuit industry — which itself plagues schools, as illustrated by the ban on running in playgrounds that one Florida county adopted after having to settle 189 playground lawsuits in five years, and health care, as demonstrated by the surge in childhood obesity caused in part by overcautious playground safety rules.

• Lawsuits. The modern American approach to litigation includes "letting anyone sue for almost anything," Howard explains, with endless proceedings in cases that judges would once have dismissed out of hand. This is "supposedly neutral [but] in fact tilts the scales in favor of whoever is in the wrong. Defendants can coerce an unfair settlement by dragging their feet, and plaintiffs can extort settlements by suing for ruinous damages irrespective of actual loss or fault."

The book traces how the "rights revolution" of the 1960s and ’70s, initially a shield against abuses of power by government and business, has morphed into an engine of abusive and often fraudulent lawsuits that allows "self-interested parties to invoke legal power unilaterally to threaten the livelihoods of other free citizens."

This "tyranny of the angry individual," Howard writes "turns our rights upside down…. The lawyers pretend that they’re Robin Hood, with the modern twist that they keep much of the money for themselves."

One reductio ad absurdum was the $54 million lawsuit against a Washington dry cleaner accused of losing an administrative law judge’s pants. The multimillion-dollar claim was obviously frivolous. But the courts kept it alive for more than two years of legal wrangling at a cost of over $100,000 in legal fees, exhausting the savings of and inflicting misery on the store’s Korean-born owners. No wonder only 16 percent of respondents in a 2005 Harris poll commissioned by Common Good said they would trust justice if someone brought a baseless claim against them.

The incremental tort reforms pushed by business and physicians groups won’t fix the fundamental problem, in Howard’s view. What’s needed, he says, is to "restore the authority of judges to draw legal boundaries," by dismissing unreasonable lawsuits at the outset and penalizing those who bring them. He also suggests creating independent "risk commissions" to propose guidelines identifying activities that should be immune from lawsuits.

• Schools. Despite massive reform efforts, "reading scores in elementary and high schools have stayed flat for almost 40 years. In that period, the ranking of American students has consistently fallen relative to their peers in other developed countries."

Why? In large part because literally thousands of bureaucratic rules imposed by local, state, and federal governments prevent good teachers and principals from using their best judgment on what works; because "due process" and special-education rules have made it very difficult to remove disruptive students; and because labor contracts have made it almost impossible to fire bad teachers.

Disorder is "at epidemic level" in many schools, Howard writes. In Public Agenda surveys, more than 40 percent of high school teachers have said they sometimes spend more time trying to keep order than teaching, and nearly 80 percent of middle and high school teachers said they have been threatened with lawsuits or accused of rights violations by students. Another survey found that one in seven teachers in urban schools had been physically assaulted by students. Some have been seriously injured. Principals send disruptive students back to class for fear of being sued or dragged through endless hearings. In New York City, more than 60 steps and legal considerations are required to suspend a student for more than five days.

Such disorder is not a big problem in most parochial and charter schools, or in other developed countries, Howard writes, because "teachers in those schools have the authority to enforce values of common civility."

Meanwhile, "the toxic combination of union protectionism and the 1960s expansion of due process" have brought us to a point where "years of legal argument — years — are required to get rid of a bad teacher."

How to fix all this? Legislatures should "shove the rulebooks aside" and purge law from the routine daily life of schools, and liberate teachers and principals to act on their own best judgment. This should include the freedom to remove disruptive students without hearings or fear of lawsuits and fire teachers without litigation over tenure.

Would this risk unfairness to some? Sure. But that would beat the unfairness to all students of disorderly classrooms and bad teachers. And as a check, independent committees of parents, students, and/or teachers could be created to overturn disciplinary decisions. Committees including union officials could be empowered to overrule unfair teacher firings.

• Health care. The legacy costs dragging down General Motors "are feathers compared with what’s weighing down health care," Howard says in an interview. His book cites data showing that "unnecessary care — motivated by legal fear, greed, and ineffective variations in care — accounts for upwards of 30 percent of the total bill. Defensiveness seeps into daily decisions like an acid, corroding professional instincts of what’s right."

This includes "a sea of forms and waivers" that waste doctors’ (and patients’) time, unneeded tests and procedures, and distrust between doctor and patient, all driven by fear of malpractice lawsuits, which often win monetary settlements even though the doctors did nothing wrong.

"Health care can’t be fixed," argues Howard, unless we establish special "health courts" for medical malpractice claims, staffed by expert judges and neutral expert witnesses, with expedited proceedings, incentives for early settlements, and written opinions to establish and enforce consistent standards of care, rather than jury verdicts that vary from case to case. The result, he predicts, would be compensation for more people, fewer big-dollar pain-and-suffering awards, and dramatically lower legal expenses. Patients groups as well as providers support pilot projects of this kind.

• Washington. "Washington is paralyzed," Howard writes, by "decades of accumulated law, beyond the influence of anyone except special interests that scurry around the baseboards making sure nothing ever changes." It "can only be fixed from the outside," he argues, by mobilizing "a national coalition of citizen leaders to propose an overhaul of government" and build public pressure for change.

He has had a taste of the current paralysis up close, in meetings in which a House Democratic leader dismissed his proposal for a health court pilot project out of hand because "the lawyers are against it." A Bush political adviser rejected it because the president preferred to push a doomed damage-cap bill and then blame the Democrats when it failed.

Howard’s diagnoses may be a touch hyperbolic. His prescriptions will strike many as hopelessly utopian and others as unnecessary at a time when a man elected on a platform of changing Washington is about to take power.

But Life Without Lawyers makes a powerful case that unless leaders from outside the world of politics overpower the entrenched special interests that dominate both major political parties, even Barack Obama will have little chance of transforming Washington — and no chance at all of fixing our schools, health care, or stultifying legal culture.

This article appeared in the Saturday, December 20, 2008 edition of National Journal.

The post Too Much Law Guarantees Unfairness appeared first on Stuart Taylor, Jr..

We have recently witnessed the spectacle of three of the nation’s richest and most famous plaintiffs’ lawyers heading to federal prison for various criminal frauds. More on them later. First, let’s consider an especially egregious case that the Supreme Court allowed on May 12, for lack of a quorum, to move ahead in lower federal courts. These consolidated lawsuits, which are seeking more than $400 billion from companies that did business in South Africa during apartheid, score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

A weakly reasoned federal Appeals Court decision in the apartheid case has the additional defects of thumbing its nose at the Supreme Court and insulting the current, democratically elected government of South Africa, which is led by victims of apartheid.

American Isuzu Motors v. Ntsebeza is a class action purporting to represent all of the more than 20 million black South Africans who were held down by the brutal apartheid regime between 1948 and 1994. The claimed $400 billion would come from more than 50 of the big American and multinational companies that usually end up in the dock when plaintiffs’ attorneys are looking for deep pockets to pick.

Lawyers led by Michael Hausfeld of Washington, D.C., and Paul Hoffman of Los Angeles have accused these companies of "aiding and abetting" international law violations dating back 60 years simply by selling products and doing other business in South Africa during apartheid.

The sprawling scope of the lawsuits, and the self-indulgence of the justices, account for the embarrassing lack of a six-justice quorum: Four of the nine recused themselves because of stockholdings in or other ties to defendant companies. This outcome was especially scandalous because the justices could easily avoid most such recusals by selling their individual stocks (tax-free, under a 2006 law) and reinvesting in broad stock index funds.

Apartheid was monstrous. But even on the debatable assumption that the companies were wrong to do business under it, this case is no remedy. Rather, it rubs salt in apartheid’s wounds, according to South Africa’s current government. Specifically:

The lawsuits will do victims little or no good. The more than 20 million surviving blacks who lived under apartheid are unlikely to get more than a couple of quarters apiece, if anything. The $400 billion claim is frivolous. Even the most fecklessly PC judges are not going to order a vast reparations program for 20 million South Africans at the expense of (mostly) U.S. consumers. And even if Hausfeld and Hoffman succeed in using burdensome court-approved fishing expeditions and inflammatory publicity to extort nuisance settlements of, say, $20 million, that would come to about 50 cents for each "plaintiff," assuming that legal fees and costs consume the usual 30 to 60 percent.

They will penalize no human wrongdoer. The defendants include none of the leaders or supporters of the apartheid regime, and none of the corporate chieftains who did business in South Africa under apartheid. In any event, whether right or wrong then, these executives are retired or dead now.

They will deter more beneficial than harmful conduct. While timely lawsuits against real wrongdoers can deter future misconduct, that’s not likely here. Not many companies are interested in aiding and abetting human-rights violations. The conduct likely to be deterred is the private-sector trading and investing that our government has long encouraged to engage the many foreign countries whose governments have–like our own–been accused of human-rights violations.

The money comes from us all. The companies’ defense costs and any damage payments would not come from corporate big shots. Rather, in the aggregate such costs are spread to us all in the form of higher prices and insurance premiums; of downward pressure on the stockholdings of the big pension funds and tens of millions individual investors; and of lost jobs, when companies are hit really hard or bankrupted, as more than 60 have been by the asbestos-litigation scam. (See my January 3, 2004, column, p. 8.)

These are among the reasons both the State Department and South Africa’s current, black-run government strongly urged dismissal, with the latter asking the courts not to "intrude upon and disrupt our own efforts to achieve reconciliation and reconstruction" and warning that the case could "discourage much-needed direct foreign investment in South Africa." Then the Supreme Court suggested, in an extraordinarily pointed footnote in another case, that perhaps the apartheid lawsuits should be dismissed. And federal District Judge John Sprizzo did dismiss them.

But in October, Judges Robert Katzmann and Peter Hall of the U.S. Court of Appeals for the 2d Circuit, in New York, brushed aside all these warnings and used an expansive interpretation of the cryptic 1789 Alien Tort Statute to reinstate the apartheid lawsuits. Their strained reasoning–ably shredded by Judge Edward Korman’s dissent and denounced as "judicial imperialism" by South African President Thabo Mbeki on the floor of Parliament–is emblematic of the lengths to which some judges will go to keep worthless litigation alive. Now the case will probably drag on for years, consuming countless millions of dollars in legal costs and irritating both South Africa and our best allies, whose companies are among the defendants.

Perhaps it should come as no surprise that two titans of the plaintiffs’ securities bar–now headed for prison–were systematically paying kickbacks to recruit "name plaintiffs."

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) "The American bar is actively soliciting alien plaintiffs" to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary "as something of a rogue actor."

Meanwhile, countless cases in other fields also score high on the Index of Completely Worthless Lawsuit Indicators. Examples:

• Lawyers have recruited a coastal Eskimo village in Alaska and others harmed by weather patterns arguably caused by global warming to sue a bunch of big companies for the combined effects of carbon emissions by the entire human race, and for seeking to sow doubt about the threat.

• Officials in Rhode Island and elsewhere are teaming with trial lawyers to extort billions of dollars from the paint industry for sales of lead-based pigment and paint that ended more than 50 years ago. These lawsuits would not compensate a single victim of lead poisoning. Their ostensible purpose is to force the companies to pay to strip lead paint from hundreds of thousands of buildings. In fact, this strategy is not the best way to prevent lead poisoning, and little paint-stripping needs to be–or will be–done. And a recent Rhode Island health department report shows a dramatic decline in unhealthy lead levels in children.

• Most of the shareholder class actions that have taken hundreds of billions of dollars from companies in the past 25 years are a court-supervised "extortion racket," as professor Lester Brickman of Yeshiva University’s Cardozo Law School has explained. They do little or nothing to penalize or deter wrongdoers. Rather, they "transfer wealth from current shareholders of a company to previous owners of the stock. Since many investors at a moment in time are both present and previous owners of various stocks, the net aggregate effect … is to transfer wealth from shareholders’ left pockets to their right pockets less the billions of dollars in fees paid to the class-action lawyers."

Perhaps it should come as no surprise that the two titans of the plaintiffs’ securities bar, William Lerach and Melvyn Weiss, formerly of mega-firm Milberg Weiss, were systematically paying kickbacks to recruit "name plaintiffs," so as to beat other lawyers to the courthouse door when companies’ stocks dropped. Lerach and Weiss are now headed to federal prison, as is Richard (Dickie) Scruggs, the billionaire Mississippi trial-lawyer kingpin who got caught trying to bribe a judge.

And perhaps it should come as no surprise that Lerach told The Wall Street Journal that the lawyers in his field routinely paid kickbacks to clients. He called it an "industry practice." This industry is rotten.

This article appeared in the Saturday, May 17, 2008 edition of National Journal.

The post Lawsuits That Benefit Only Lawyers appeared first on Stuart Taylor, Jr..

Measured against these aspirations, the three Bush-backed Band-Aids now before Congress are tired, unimaginative, incomplete, and — in the case of a medical-malpractice bill that the House passed in 2003 — deservedly doomed to defeat.

Unless radically revised, the malpractice bill will once again die in the Senate because it would cap damage awards for some horribly injured victims of negligent medical care without doing anything to ameliorate the malpractice litigation system’s worst features:

This system does nothing for most victims of medical negligence, the vast majority of whom are not compensated at all and the rest of whom wait years before getting a dime. The system cannot reliably distinguish good doctors from bad ones, and it thus exposes those who have done nothing wrong to the risk of ruinous liability. It wastes huge sums on legal fees. And it helps drive up the cost of health care.

Similarly, the biggest problem with the tort system is not overcompensation of injured plaintiffs. The biggest problems are that more than half of the money paid into the system is raked off by lawyers — some of whom enrich themselves at the expense of their clients — and insurers, or goes toward other transaction costs. The system squeezes billions of dollars out of defendants who should not be liable at all. And while it does overcompensate some plaintiffs, it undercompensates many others.

Consider these numbers from Towers Perrin, which provides consulting services to insurance companies and publishes the most complete cost statistics on torts.

The tort system now costs every man, woman, and child in America an average of $845 a year, almost 10 times the inflation-adjusted $91 per capita it cost in 1950. The $246 billion-a-year total comes to 2.2 percent of America’s gross domestic product — more than triple the 0.6 percent in the United Kingdom and more than double the 0.8 percent in Japan, France, and Canada. And as of 2002, only 22 percent of all tort costs went to compensate alleged victims’ out-of-pocket losses; 24 percent went to pay for non-economic losses such as pain and suffering; 19 percent went to plaintiffs’ lawyers; 14 percent went to defense costs; and 21 percent went to insurance overhead.

The three pending tort-reform proposals — shaped by congressional Republicans and industry lobbyists, not by Bush — would make only a small dent in these numbers. But two of them have some merit.

The first is a bipartisan bill to shift class-action lawsuits of nationwide scope from state to federal courts. The purpose is to stop the increasing collusion among plaintiffs’ lawyers and friendly local judges to rip off out-of-state defendants and even to cheat the lawyers’ own "clients," who sometimes get virtually worthless coupons while the lawyers get millions. This bill seems sure to pass, as it should. But the price of getting enough Democrats on board was to make the bill so vague as to leave ample opportunities for forum-shopping and for endless litigation over which court should hear which case.

The second proposal seeks a global, congressionally approved settlement of the out-of-control asbestos litigation that has bankrupted more than 70 companies — many of which did little or nothing wrong — while clogging courts with bogus claims that crowd out many real victims of asbestos-induced cancers. The centerpiece would be a $140 billion fund put up by corporate defendants and insurers in return for a respite from asbestos lawsuits. Some such congressional solution is urgently needed. But the negotiations may well break down, and whether Bush will make a difference remains to be seen.

The third proposal represents Bush’s most conspicuous missed opportunity to seek fundamental reforms to benefit injured victims as well as defendants. This is the bill that the House passed in 2003 to curb tort suits against doctors, hospitals, HMOs, and makers of medical drugs and devices, in state courts as well as federal courts. The key provision would place a $250,000 cap on awards for non-economic damages such as pain and suffering.

There is much to be said for curbing pain-and-suffering awards. They have soared in recent years. They are imposed with wild inconsistency by different juries, which are invited to pick numbers out of the air. And as noted above, they cost society more than it costs to compensate plaintiffs’ out-of-pocket lossesAnd cash is an odd form of "compensation" for pain and suffering: None of us voluntarily buys insurance to pay us cash for the mental pain caused by, say, the death of a child. But the tort system forces us all to pay, indirectly, for the "right" to seek cash from any doctors, corporations, or others who might be blamed for such a tragedy.

This bill’s proposed $250,000 cap on pain-and-suffering awards against doctors is flawed in multiple ways, however:

• Principles of federalism weigh against congressional intervention into this traditional state domain. Unlike, say, product-liability lawsuits, medical-malpractice litigation has little effect on interstate commerce and presents little danger of home-state bias against out-of-state defendants.

• In the cases of some horribly injured patients, such as a woman who was disfigured by an unnecessary double mastectomy, the proposed $250,000 cap would offend most Americans’ sense of justice.

• While making it harder for malpractice victims to sue, the proposal would provide them with no offsetting benefit. It would do nothing to prevent medical errors, which cause as many as 100,000 deaths a year; to protect patients from incompetent doctors; or to change the culture of secrecy that deters doctors from reporting errors lest they be sued.

• The proposal would provide no remedy for the peculiar randomness of malpractice litigation. A malpractice lawsuit is little more reliable than a coin flip at distinguishing between negligent doctors and good ones: While more than 90 percent of injured patients receive no compensation through the courts, studies suggest, the few juries that do find doctors negligent are wrong 80 percent of the time"This seems to me to miss a great opportunity to change this very wasteful system and pay people who really need it relatively promptly for real losses," says professor Jeffrey O’Connell of the University of Virginia Law School. O’Connell has long proposed to encourage prompt payments through a reform that could also slash litigation expenses and protect doctors and other defendants from random imposition of ruinous liability.

Under O’Connell’s proposal, when a doctor, or any tort defendant, is sued, he or she would be able to limit the risk of a huge pain-and-suffering award by offering at the outset to reimburse the plaintiff for any otherwise uncompensated medical costs and lost wages. Such an early offer would shield the defendant from pain-and-suffering liability unless the plaintiff could present especially convincing proof of recklessness or gross negligence.

This quasi-no-fault approach would spare many injured patients from years of destitution or financial strain while they pursue the uncertain hope of a big win. It would give doctors stronger incentives to admit errors — even to apologize, which can do much to alleviate plaintiffs’ psychic wounds. At the same time, pain-and-suffering awards would remain available in cases of truly gross malpractice.

Another worthy proposal is championed by Common Good, a bipartisan law-reform group founded by Manhattan lawyer-author-civic activist Philip Howard and backed by a broad coalition of health care and legal experts. The Common Good proposal would create special health courts, with expert judges taking the place of juries, to provide patients and doctors alike with fairer, faster, cheaper, more-consistent, and more-predictable justice.

When patients sue doctors for such things as failing to order costly CT scans for routine headaches that later turn out to be brain cancers, Howard stresses, only expert judges can reliably and predictably distinguish good from bad medical care and give doctors clear guidance on what the law requires. Such special courts should be twinned, he says, with beefed-up regulatory oversight to put incompetent doctors under scrutiny or out of business.

"The quality of medical care today is threatened by the pervasive, unwelcome, crushing embrace of the law," as Harvard law professor Paul Weiler wrote more than a decade ago. A crudely designed damage cap is no remedy. This system needs major surgery. 

The post Opening Argument – Better Justice: Bush’s Missed Opportunity appeared first on Stuart Taylor, Jr..

So says law professor Lester Brickman, the leading scholarly critic of the 50,000 to 100,000 asbestos-related injury claims being filed each year by people who, 90 percent of the time, Brickman says, "have no discernable illness or impairment." Rather, they and their lawyers "have cashed in on this national tragedy" by filing claims based on "specious medical evidence."

These disturbing contentions come in a 137-page article to be published this month in The Pepperdine Law Review. They suggest at least the possibility of ongoing corruption of the civil justice system on a staggering scale by powerful plaintiffs lawyers, with the help of complaisant judges — many of whom are politically indebted to the lawyers — while the U.S. Supreme Court primly averts its eyes.

Brickman’s view is disputed by most of the plaintiffs bar. The evidence that he cites has largely been ignored by the courts and other academics. And those who profit from asbestos lawsuits will be quick to point out that Brickman, a professor at the Cardozo Law School of Yeshiva University, has done paid consulting work for asbestos defendants.

But Brickman’s empirical research is so massive, his scholarship so meticulous, and his 526 footnotes so crammed with compelling evidence, that his article — together with the work of a handful of investigative reporters — should shift the burden of proof in public debate to those who defend the legitimacy of the asbestos-claims industry.

This is not to disparage the claims of the many thousands of workers who have been injured and killed by lung diseases caused by inhaling large quantities of asbestos dust over long periods of time in their workplaces. Almost all of these injuries originated before 1973, when use of asbestos in its most dangerous forms was widely discontinued. Some victims have suffered from lung cancer or mesothelioma, a virulent, asbestos-induced cancer that kills about 2,000 people a year. Most have had asbestosis, a nonmalignant scarring of lung tissue that can cause shortness of breath ranging from almost undetectable to very severe. Two big manufacturers of asbestos who conspired to suppress information about its dangers were deservedly held liable and driven into bankruptcy long ago — joined more recently by dozens of other companies that were far less culpable, if they were culpable at all.

The current asbestos-litigation crisis is rooted in well-intentioned efforts by judges to rewrite legal rules to compensate asbestos victims despite the absence of proof as to who caused their illnesses. Courts created a body of "special asbestos law," as Brickman calls it, under which claimants, without proving that they have suffered any real harm, can win tens of thousands of dollars or more from multiple defendants.

In many jurisdictions, claimants can win by proving just that they worked near asbestos-containing products; that their chest X-rays, in the opinion of experts hired by plaintiffs’ lawyers, are "consistent with" asbestosis (even though that does not prove actual illness or injury); and that pulmonary function tests show reduced lung capacity (which is easily faked). Courts have also severely bent procedural rules to aggregate thousands of dissimilar claims into gigantic lawsuits that coerce defendants to settle by making it impossible to defend against bogus claims. And they have subjected to unlimited liability corporate purchasers of companies that had long since stopped using asbestos.

The inevitable consequence has been to open the floodgates to what Brickman calls "massive specious claiming" by plaintiffs with no real injuries. No longer is the norm for people with illnesses possibly caused by asbestos to seek medical care and then perhaps legal counsel. Rather, since the 1980s, law firms and attorney-sponsored screening companies have signed up hundreds of thousands of current and former workers who typically have no symptoms of impairment. The recruiters solicit by word of mouth and advertising. ("Find out if YOU have MILLION-DOLLAR LUNGS!" was the pitch used in one mass Internet mailing.) Screening companies deploy trailer trucks equipped to provide free X-rays and pulmonary tests. Among the perverse workings of this asbestos litigation industry:

* While "almost no new actual cases of asbestosis have manifested in the past 10 years" — because few people have inhaled harmful quantities of asbestos since 1973 — the number of asbestosis legal claims has continued to soar. Ninety percent of current claimants, Brickman asserts, have no real evidence that their lungs are any worse than those of much of the U.S. adult male population of similar age.

* More than 475,000 "meritless asbestos claims" have won an average of at least $60,000 each from defendants so far, Brickman estimates, for a total of more than $28.5 billion in unwarranted recoveries — and counting. More than $10 billion of this has gone to plaintiffs’ lawyers. This is on top of the many billions in legitimate awards. The litigation has driven nearly 70 companies into bankruptcy, costing more than 50,000 employees their jobs and eliminating an estimated 500,000 more jobs that would otherwise have been created.

* The evidence suggests strongly that "a cadre of plaintiffs’ doctors … regularly and systematically misdiagnose asbestos-related conditions" for profit, Brickman asserts. He details "huge and consistent discrepancies" between these doctors’ X-ray readings and those of neutral doctors. The mass screening enterprises typically find the tests of 40 to 65 percent or more of those screened to be "consistent with asbestosis," Brickman estimates. Neutral doctors diagnose asbestosis in fewer than 5 percent of people with similar histories of exposure.

* The screening companies "realize tens of millions of dollars of repeat business from finding evidence of asbestosis." Some charge lawyers much more for claimants whose tests are "consistent with asbestosis" than for others; many generate huge numbers of false positives by using substandard X-ray equipment and rushing through pulmonary tests in as little as three to 15 minutes, despite an expert consensus that it takes at least 45 minutes to separate false positives from cases of real impairment. There is evidence of widespread fraud in pulmonary testing.

* Many claimants testify according to law firm scripts that coach them to fabricate nonexistent impairments; to "create memories irrespective of the underlying facts" as to which asbestos-containing products they saw in their workplaces more than 30 years ago; and to deny seeing warning labels, whether they saw them or not. Over the years, as asbestos lawyers have sued more than 6,000 companies in their search for still-solvent deep pockets, their clients’ testimony as to which asbestos-containing products they saw at specific work sites during specific periods has changed markedly. This pattern suggests that the testimony "has been orchestrated by plaintiff lawyers" to maximize recoveries against still-solvent companies, Brickman writes.

* Plaintiffs’ lawyers have become fabulously wealthy by charging contingent fees as high as 40 percent, plus litigation expenses, even for mass-produced claims that take as little as 10 minutes of paralegal time to prepare. Brickman estimates that these fees bring lawyers several thousand dollars per hour of actual work done.

* Forum-shopping lawyers have filed most of the hundreds of thousands of claims generated over the past 15 years in a handful of jurisdictions in Texas, Mississippi, West Virginia, and Illinois. "What I call the ‘magic jurisdiction,’ " billionaire plaintiffs lawyer Dickie Scruggs of Mississippi once explained with stunning candor (as quoted in The Wall Street Journal), is "where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges…. They’ve got large populations of voters who are in on the deal…. It’s almost impossible to get a fair trial if you’re a defendant in some of these places, [no] matter what the evidence or the law is."

Traditional civil justice reform and the current congressional push to orchestrate a grand asbestos settlement, Brickman argues, have little chance of overcoming the awesome power of some plaintiffs’ lawyers to coerce settlements, bankrupt defendants, and intimidate critics. Nor will many judges or scholars confront "the possibility that the civil justice system has been corrupted." The only way to expose the asbestos litigation industry’s inner workings, he says, would be a sweeping grand jury investigation. Good idea. 

The post Opening Argument – Asbestos Litigation: EvidenceOf Massive Corruption? appeared first on Stuart Taylor, Jr..

The Rev. Ron Singleton’s door is always open. That way, when the Methodist minister of a small congregation in Inman, S.C., is counseling a parishioner, his secretary across the hall is a witness in case Singleton is accused of inappropriate behavior. (When his secretary is not around, the reverend does his counseling at the local Burger King.) Singleton has a policy of no hugging from the front; just a chaste arm around the shoulders from the side. And he’s developed a lame little hand pat to

The Rev. Ron Singleton’s door is always open. That way, when the Methodist minister of a small congregation in Inman, S.C., is counseling a parishioner, his secretary across the hall is a witness in case Singleton is accused of inappropriate behavior. (When his secretary is not around, the reverend does his counseling at the local Burger King.) Singleton has a policy of no hugging from the front; just a chaste arm around the shoulders from the side. And he’s developed a lame little hand pat to console the lost and the grieving. The dearth of hugging is "really sad," he says, but what is he going to do? He could ill afford a lawsuit.

Dr. Sandra R. Scott of Brooklyn, N.Y., has never been sued for malpractice, but that doesn’t keep her from worrying. As an emergency-room doctor, she often hears her patients threaten lawsuits–even while she’s treating them. "They’ll come in, having bumped their heads on the kitchen cabinet, and meanwhile I’ll be dealing with two car crashes," she says. "And if they don’t have the test they think they should have in a timely fashion, they’ll get very angry. All of a sudden, it’s ‘You’re not treating me, this hospital is horrible, I’m going to sue you’."

Ryan Warner is a volunteer who runs an annual softball tournament in Page, Ariz., that usually raises about $5,000 to support local school sports programs. But not this year. A man who broke his leg at a recent tournament sliding into third base filed a $100,000 lawsuit against the city, and Warner fears he may be named as a defendant. "It’s very upsetting when you’re doing something for the community, not making any money for yourself, to be sued over something over which you had no control," he says. So Warner canceled the tournament.

Playgrounds all over the country have been stripped of monkey bars, jungle gyms, high slides and swings, seesaws and other old-fashioned equipment once popularized by President John F. Kennedy’s physical-fitness campaign. The reason: thousands of lawsuits by people who hurt themselves at playgrounds. But some experts say that new, supposedly safer equipment is actually more dangerous because risk-loving kids will test themselves by, for instance, climbing across the top of a swing set. Other kids sit at home and get fat–and their parents sue McDonald’s.

Americans will sue each other at the slightest provocation. These are the sorts of stories that fill schoolteachers and doctors and Little League coaches with dread that the slightest mistake–or offense to an angry or addled parent or patient–will drag them into litigation hell, months or years of mounting legal fees and acrimony and uncertainty, with the remote but scary risk of losing everything. And while lawsuits can be a force for good, they are also changing and complicating the lives of millions of American professionals in ways that confound common sense and cast a shadow over a system that can, at its best, offer people relief and redress from legitimate grievances (John Edwards’s essay, page 53).

The onslaught of litigation is nothing new–nor all bad. Starting in the 1960s, crusading judges and well-meaning social reformers began opening the way for the powerless and the dispossessed to assert their rights by going to court. Large corporations and authority figures were held responsible for their carelessness or callousness. Manufacturers were forced to pay more attention to the safety of their workers and consumers, and public officials were held more accountable to the people they served.

But Americans don’t just sue big corporations or bad people. They sue doctors over misfortunes that no doctor could prevent. They sue their school officials for disciplining their children for cheating. They sue their local governments when they slip and fall on the sidewalk, get hit by drunken drivers, get struck by lightning on city golf courses–and even when they get attacked by a goose in a park (that one brought the injured plaintiff $10,000). They sue their ministers for failing to prevent suicides. They sue their Little League coaches for not putting their children on the all-star team. They sue their wardens when they get hurt playing basketball in prison. They sue when their injuries are severe but self-inflicted, when their hurts are trivial and when they have not suffered at all.

Many of these cases do not belong in court. But clients and lawyers sue anyway, because they hope they will get lucky and win a jackpot from a system that allows sympathetic juries to award plaintiffs not just real damages–say, the cost of doctor’s fees or wages lost–but millions more for impossible-to-measure "pain and suffering" and highly arbitrary "punitive damages." (Under standard "contingency fee" arrangements, plaintiffs’ lawyers get a third to a half of the take.) This year the U.S. Supreme Court tried to limit punitive damages, and judges often reduce the most outrageous jury verdicts. And the "litigation explosion" of the past 30 years may be leveling off (though one study shows a sharp recent uptick). Even so, the mere threat of a lawsuit is intimidating. Many Americans sue because they have come to believe that they have the "right" to impose the costs and burdens of defending a lawsuit on anyone who angers them, regardless of fault or blame.

The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers. Our society has been changed in a subtler, sadder way. We have been hardened and made more fearful. Friends and neighbors are more wary now. Almost anyone has to ask: if I say or do something that might be taken wrong, will I wind up in court? Mentors and teachers are restrained from offering either comfort or discipline–might that touch be misconstrued, those stern words somehow made "actionable"?

Perversely, our insistence on enforcing our "rights" has made us less free–less free to use our own judgment to make common sense or humane choices about the way we live and treat others. We are paralyzed by "legal fear," says Philip K. Howard, a legal reformer who published a 1994 best seller on the subject, "The Death of Common Sense," and more recently, &quo…

The Rev. Ron Singleton’s door is always open. That way, when the Methodist minister of a small congregation in Inman, S.C., is counseling a parishioner, his secretary across the hall is a witness in case Singleton is accused of inappropriate behavior. (When his secretary is not around, the reverend does his counseling at the local Burger King.) Singleton has a policy of no hugging from the front; just a chaste arm around the shoulders from the side. And he’s developed a lame little hand pat to

The Rev. Ron Singleton’s door is always open. That way, when the Methodist minister of a small congregation in Inman, S.C., is counseling a parishioner, his secretary across the hall is a witness in case Singleton is accused of inappropriate behavior. (When his secretary is not around, the reverend does his counseling at the local Burger King.) Singleton has a policy of no hugging from the front; just a chaste arm around the shoulders from the side. And he’s developed a lame little hand pat to console the lost and the grieving. The dearth of hugging is "really sad," he says, but what is he going to do? He could ill afford a lawsuit.

Dr. Sandra R. Scott of Brooklyn, N.Y., has never been sued for malpractice, but that doesn’t keep her from worrying. As an emergency-room doctor, she often hears her patients threaten lawsuits–even while she’s treating them. "They’ll come in, having bumped their heads on the kitchen cabinet, and meanwhile I’ll be dealing with two car crashes," she says. "And if they don’t have the test they think they should have in a timely fashion, they’ll get very angry. All of a sudden, it’s ‘You’re not treating me, this hospital is horrible, I’m going to sue you’."

Ryan Warner is a volunteer who runs an annual softball tournament in Page, Ariz., that usually raises about $5,000 to support local school sports programs. But not this year. A man who broke his leg at a recent tournament sliding into third base filed a $100,000 lawsuit against the city, and Warner fears he may be named as a defendant. "It’s very upsetting when you’re doing something for the community, not making any money for yourself, to be sued over something over which you had no control," he says. So Warner canceled the tournament.

Playgrounds all over the country have been stripped of monkey bars, jungle gyms, high slides and swings, seesaws and other old-fashioned equipment once popularized by President John F. Kennedy’s physical-fitness campaign. The reason: thousands of lawsuits by people who hurt themselves at playgrounds. But some experts say that new, supposedly safer equipment is actually more dangerous because risk-loving kids will test themselves by, for instance, climbing across the top of a swing set. Other kids sit at home and get fat–and their parents sue McDonald’s.

Americans will sue each other at the slightest provocation. These are the sorts of stories that fill schoolteachers and doctors and Little League coaches with dread that the slightest mistake–or offense to an angry or addled parent or patient–will drag them into litigation hell, months or years of mounting legal fees and acrimony and uncertainty, with the remote but scary risk of losing everything. And while lawsuits can be a force for good, they are also changing and complicating the lives of millions of American professionals in ways that confound common sense and cast a shadow over a system that can, at its best, offer people relief and redress from legitimate grievances (John Edwards’s essay, page 53).

The onslaught of litigation is nothing new–nor all bad. Starting in the 1960s, crusading judges and well-meaning social reformers began opening the way for the powerless and the dispossessed to assert their rights by going to court. Large corporations and authority figures were held responsible for their carelessness or callousness. Manufacturers were forced to pay more attention to the safety of their workers and consumers, and public officials were held more accountable to the people they served.

But Americans don’t just sue big corporations or bad people. They sue doctors over misfortunes that no doctor could prevent. They sue their school officials for disciplining their children for cheating. They sue their local governments when they slip and fall on the sidewalk, get hit by drunken drivers, get struck by lightning on city golf courses–and even when they get attacked by a goose in a park (that one brought the injured plaintiff $10,000). They sue their ministers for failing to prevent suicides. They sue their Little League coaches for not putting their children on the all-star team. They sue their wardens when they get hurt playing basketball in prison. They sue when their injuries are severe but self-inflicted, when their hurts are trivial and when they have not suffered at all.

Many of these cases do not belong in court. But clients and lawyers sue anyway, because they hope they will get lucky and win a jackpot from a system that allows sympathetic juries to award plaintiffs not just real damages–say, the cost of doctor’s fees or wages lost–but millions more for impossible-to-measure "pain and suffering" and highly arbitrary "punitive damages." (Under standard "contingency fee" arrangements, plaintiffs’ lawyers get a third to a half of the take.) This year the U.S. Supreme Court tried to limit punitive damages, and judges often reduce the most outrageous jury verdicts. And the "litigation explosion" of the past 30 years may be leveling off (though one study shows a sharp recent uptick). Even so, the mere threat of a lawsuit is intimidating. Many Americans sue because they have come to believe that they have the "right" to impose the costs and burdens of defending a lawsuit on anyone who angers them, regardless of fault or blame.

The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers. Our society has been changed in a subtler, sadder way. We have been hardened and made more fearful. Friends and neighbors are more wary now. Almost anyone has to ask: if I say or do something that might be taken wrong, will I wind up in court? Mentors and teachers are restrained from offering either comfort or discipline–might that touch be misconstrued, those stern words somehow made "actionable"?

Perversely, our insistence on enforcing our "rights" has made us less free–less free to use our own judgment to make common sense or humane choices about the way we live and treat others. We are paralyzed by "legal fear," says Philip K. Howard, a legal reformer who published a 1994 best seller on the subject, "The Death of Common Sense," and more recently, "The Collapse of the Common Good" (2001). But are we truly stuck? In two of the most contentious arenas–education and health care–Howard has devised proposals to save Americans from a legal system gone mad. He says the key is to separate trivial or frivolous cases that don’t belong in court from those that are legitimate, a responsibility that he says judges have abdicated.

A corporate lawyer and civic activist with a philosophical bent, Howard began wondering more than a decade ago why it was so hard to get anything done in government. As he probed into rules and regulations, he began to see that the biggest impediment was the fear of lawsuits. The son of a Southern minister, educated at Yale and the University of Virginia Law School, Howard has become a courtly evangelist for the notion that only radical reform can stop what he calls the "legal free-for-all."

Howard is, to say the least, a controversial figure to trial lawyers and some public-advocacy groups. "You can’t take away people’s rights and call it reform," says consumer advocate Ralph Nader, who calls the civil-jury system "a gem" and describes trial lawyers as "all that is left to require wrongdoers to be held accountable. Philip Howard is a corporate lawyer who tilts his data-starved abstractions in the direction of defendants’ prerogatives at the expense of plaintiffs’ rights. He is a partner in the giant law firm of Covington & Burling, which has historically represented some of the most damaging corporate behavior, from tobacco to pharmaceuticals to chemical companies." (Covington & Burling represents NEWSWEEK as well. Howard says he does no work of the type Nader complains about.)

Howard likens the medical-justice system to "cancer in its latest stage." Most Americans do not go to work every day, at least not yet, wondering if they are going to get sued. But many doctors do, especially those in high-risk specialties like obstetrics and surgery. "Every patient is a potential litigant, every family member is a potential plaintiff," says Dr. Thomas Rawlinson, a Memphis, Tenn., internist. Fear of a lawsuit would probably deter him from stopping to help a stranger injured in an accident, he says–and Rawlinson hasn’t even been sued yet.

While doctors win most malpractice cases that go to trial, their insurers lose often enough to want to settle many claims. (In California recently, a couple won a $70 million judgment against Stanford University Hospital and two other health-care centers for failing to prevent their child from becoming disabled by a rare birth condition.) Sometimes, the malpractice is egregious. But then there are cases that, in an earlier era, would have been dismissed as the patient’s own fault. Take the pending lawsuit by a 29-year-old drug addict who sued a Pennsylvania mental hospital for failing to prevent her from overdosing on drugs and cutting herself. The hospital should have warned visitors against bringing drugs into the hospital, the lawsuit claimed. The staff should have noticed that a visitor had sneaked some heroin and cocaine to her. The hospital’s job, her lawyers claim, was to protect her from herself.

No wonder, according to one estimate, doctors waste $50 billion to $100 billion on "defensive medicine" to prove that they left no stone unturned, no test untried, no medication unprescribed, no specialist unconsulted. That kind of money could buy health insurance for the 40 million Americans who have none.

Medical-malpractice claims don’t even do what they’re supposed to do–compensate victims and deter future mistakes. Various studies have found that the vast majority of medical errors go undetected by patients and that nine out of 10 are never compensated. (And when patients do sue, their malpractice allegations are unfounded in as many as 80 percent of the cases, other studies suggest; insurance companies pay to settle the vast majority of claims anyway, rather than risk a big hit.) Countless avoidable deaths are actually caused by the system. Fear of lawsuits contribute to a culture of secrecy. Doctors avoid discussing problems and errors, lest such candor be used against them in court. The most dangerously incompetent doctors often remain in place for many years, in part because employers fear wrongful-dismissal lawsuits by fired doctors even more than malpractice suits by their victims.

"Legal fear" is just as intense in the educational system. Many Americans sense that schools have become chaotic and undisciplined over time and the quality of teachers has declined. Many teachers say that the joy has gone out of their jobs. What’s not generally known is the role of courts and Congress in creating these problems by depriving teachers and principals of the freedom to use their own common sense and best judgment. Thanks to judicial rulings and laws over the past four decades, parents can sue if their kids are suspended for even a single day–for any reason–without adequate "due process." Well-intentioned federal disability laws have made it so difficult to suspend any emotionally disturbed student for more than 10 days–even if he is chronically violent and disruptive–that many schools don’t even try.

In Wisconsin, a chronic troublemaker was finally expelled from high school for his role in a $40,000 vandalism spree. The student’s mother hired a psychologist who diagnosed the boy with attention-deficit disorder and depressive moods. The courts ordered the school to let him return and graduate–follow the contorted logic here–because the school had failed to prove that these previously unknown disabilities had played no part in the vandalism.

School boards now fear that parents will sue for anything. In Kentucky, a mother sued her daughter’s school after the girl had performed oral sex on a boy during a schoolbus ride returning from a marching-band contest. The woman blamed poor adult supervision, saying her daughter had been forced. If the case goes badly for the school system, such trips could be jeopardized.

Even if a school wins in court, these cases cast a pall. Alan Bersin, the superintendent of San Diego City Schools, calls the risk of being sued "the anaconda in the chandelier"–it hangs constantly overhead, threatening to strike at any time. Unruly students sense the teachers’ fear and their own empowerment. "A kid will be acting out in class, and you touch his shoulder, and he’ll immediately come back with ‘Don’t touch me or I’ll sue,’ or, ‘You don’t have any witnesses’," says Rob Wiel, who taught high-school math and coached football and baseball in the Denver suburbs for 20 years before retiring recently. "They have all these lines."

If, as Howard says, the educational system is a "viper’s nest" of entitlements and legal fear, the playgrounds and playing fields are an absolute war zone. Parents, on behalf of their children, increasingly sue not only for physical injuries, but for "hurt feelings" when they don’t make a team, says John Sadler of Columbia, S.C., who insures amateur sports leagues. Coaches and referees are caught in a kind of no man’s land. If they allow a disabled kid to play, they can get sued if he hurts himself. But if they don’t let him play, they can be sued for discriminating against the disabled. If a ref steps into a fight, he can be sued if one of the players he is holding back takes a punch. If the ref doesn’t intervene, he can be sued for allowing the fight to go on. Even apparently innocent soccer moms are at risk. In Jupiter, Fla., one mother volunteered to pick up a pizza for the team. She drove over the foot of a child who, left unattended, had run into the road. The police did not even give the woman a ticket. But the parents of the child sued the mother and the soccer league and tried to sue the city, the refs and various sponsors.

Of course, any arena can be fertile ground for lawsuits. Big-city and small-town mayors alike know that their city governments are seen as a deep pocket to pay for almost any injury. New York shells out an eye-popping $550 million a year in court awards and settlements, thanks to sympathetic juries who think nothing of making government pay: $5 million for a girl’s pain and suffering from a leg broken when the car she was riding in swerved to avoid an ambulance and hit a tree; $6.3 million to a pedestrian hit by a drunken driver who disregarded signs and mounted a curb, which the jury said was too low; $7 million to a woman who lost her leg when she was hit by a taxi that may, or may not, have skidded on the ice.

The sense of legal entitlement has spread coast to coast. In Penobscot County, Maine, authorities hunted for a convicted sex offender wanted on felony charges for three days after he disappeared into the snowy woods. When the suspect was finally tracked down, he had frostbite and lost two toes. Incredibly, police say, the man threatened to sue the police for not catching him sooner. He couldn’t find a lawyer, but his sheer chutzpah did not surprise Penobscot County Sheriff Glenn Ross. "We’re always facing lawsuits," says Ross. "It’s on our minds all the time."

Is there no end to this? President George W. Bush has signaled that he will try to make trial lawyers (among the biggest contributors to the Democrats) an issue in the 2004 presidential campaign. Legal reformers in some states have passed dozens of laws since the 1970s designed to stem the wave of personal-injury suits. In California, for instance, so-called tort reform (after the legal term for injury, "tort") has put a $250,000 cap on the damages that patients can win for pain and suffering in medical-malpractice cases. Other states have limited the contingency fees that lawyers can take. But many of these laws have been circumvented by the courts, and most have had little impact. The tort reformers are up against a politically powerful foe, the trial lawyers, who have positioned themselves as the guardian of the little man against the corporations. The tort reformers play into their hands by focusing on saving corporations money and doing nothing for deserving plaintiffs.

Conventional tort reform does not really go at the deeper problem. It does not bring about fundamental change in a system that affects the lives of millions by disrupting the services they depend on. Howard has suggested a more radical approach–removing disputes in education and health care from the regular court system altogether.

In the public schools, rather than running to court, aggrieved parents would have to take their disputes to a parent-teacher committee. Instead of having "a trial every time some parent is disappointed by a disciplinary decision," says Howard, educators should be free to use their common sense to protect "the rights of the 29 other students whose learning is being disrupted." Principals would be free to run schools according to their best judgment. They would have to answer to parent-teacher committees when disputes arose, but they wouldn’t have to worry about getting sued or having to jump through procedural hoops to send a student home for a day, to fire an ineffective teacher or to change the curriculum. "There are very few big-dollar lawsuits in schools," says Howard. "The process is the punishment. What really troubles people is being dragged through 12 months of hearings and cross-examined as if they were criminals."

Similarly, in the medical realm, Howard would remove most malpractice and other health-related claims to a special court of medical experts. Rather than allow juries ignorant of medical procedure to be swayed by sympathy, judges who are experts would follow established medical standards. Doctors would not have to guess at what was expected of them. A health-care court would not only shield good doctors from bad lawsuits, Howard contends, it would also give the vast majority of malpractice victims a much better chance of winning compensation for their lost wages and medical expenses, plus amounts for pain and suffering to be set by a schedule depending on the injury. Patients would be compensated within months, instead of after years of uncertainty and even impoverishment. For malpractice victims, the only loss is the remote chance of winning huge jury jackpots out of proportion to their injuries. There would be less malpractice–fewer mistakes–because doctors would be less reluctant to speak up about problems and admit error. And health insurance would be cheaper because not as many billions of dollars would be wasted on defensive medicine, legal fees and malpractice payouts.

Bringing about such fundamental changes would require political battles in Congress and the state legislatures. They are open to legitimate debate and negotiation, but they do seem to head in the right direction. The trial lawyers maintain that fictional or inflated horror stories have frightened the public, and they can point to dramatic examples where the jury system worked (such as the case of Steven Sharp, a high-school student whose arms were mangled by farm machinery that suddenly started up. After a long legal fight, he recovered $9 million). At this stage, Common Good, the legal-reform group headed by Howard (and funded in part by corporations), is only trying to raise public consciousness, not to lobby. Legal reform is a painfully slow process; over the past 30 years, attempts to require mediation before going to court have done little to stem the litigation wave. But the time may come when ordinary Americans recognize that for every sweepstakes winner in the legal lottery, there are millions of others who have to live with the consequences–higher taxes and insurance rates, educational and medical systems seriously warped by lawsuits, fear and uncertainty about getting sued themselves. One day, they may realize that their right to sue has become a trial for us all.

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The study projects further increases of 7 to 11 percent for each of the next few years. Less than a quarter of this $205 billion goes to compensate plaintiffs for actual economic losses, the study says; about a quarter pays pain-and-suffering and punitive awards; more than half is eaten up by legal fees and costs. Despite a modest decline during the 1990s in the inflation-adjusted "tort cost per citizen," the study adds, that cost "has risen by a factor of more than eight since 1950."

In some states, women are having trouble finding doctors to deliver their babies, because soaring jury awards and malpractice insurance premiums (now $166,000 a year in Miami) are driving doctors out of obstetrics. Other physicians and surgeons are moving out of state or getting out of medicine or staging protests, for similar reasons. Fear of ruinous liability has long stalled companies from developing new contraceptives and vaccines.

Multimillionaire trial lawyers have rounded up more than 600,000 plaintiffs-the majority of whom are not sick or impaired, by any reasonable definition-to sue thousands of companies that once made or used asbestos products, bankrupting more than 60 of them and depleting the resources available to compensate the small percentage of plaintiffs suffering from asbestos-induced cancers. Lawyers are financing their private jets on the backs of the smokers who ultimately pay the billions that the law firms have collected in tobacco litigation fees. Some of them are rounding up fat people to sue fast-food companies. A law review article calls for tort lawsuits against those who contribute to global warming. (Who doesn’t?) A college baseball pitcher seriously injured by a line drive sues (among others) the maker of the hitter’s bat. A high school student sues school officials to raise his A to an A-plus. And so on, and on.

But one group deserves a special niche in the annals of those who have perverted the legal system for personal and political gain at the expense of everyone else: the politically connected trial lawyers who have signed up Rhode Island, Chicago, San Francisco, St. Louis, and dozens of other governments, school districts, and housing authorities to sue over health hazards associated with sales of lead pigment and paint for indoor use. The last of those sales took place more than 45 years ago.

Rhode Island’s pending suit against Sherwin-Williams, DuPont, Arco, American Cyanamid, ConAgra Foods, and three other big companies is representative. It got started in 1999, when a law firm then called Ness, Motley, Loadholt, Richardson & Poole-a South-Carolina-based firm flush with hundreds of millions of dollars from suing tobacco companies for state attorneys general-approached then-Attorney General Sheldon Whitehouse of Rhode Island, a Democrat who was interested in running for governor. (He ran, and lost, last year.) The approach was made, Whitehouse has testified, by John J. McConnell Jr., of Ness Motley’s office in Providence; McConnell is also the state Democratic Party’s treasurer. Ness Motley has been among the biggest campaign contributors in Rhode Island.

Whitehouse signed an unusual "retainer agreement" with Ness Motley and another firm. It not only guaranteed the lawyers a contingent fee of 16.67 percent of any money recovered, plus all litigation expenses; it also gave them considerable control over whom to sue, what to claim, whether to settle, and on what terms. In other words, Whitehouse delegated a share of the state’s sovereign power to a law firm whose best-known partner, Ronald L. Motley, had vowed that he would bring the paint industry to its knees within three years or give up his 156-foot yacht. Never mind the conflict between the interests of the lawyers in huge fees and the interests of Rhode Island’s people, who might, for example, be misled and alarmed by the lawyers for their state, who claim that old lead paint in school buildings is a big threat to the students.

When lead paint chips or crumbles into dust, it can cause terrible brain damage to children who eat or breathe large amounts. But no victim of lead poisoning will get a dime in compensation from Rhode Island’s lawsuit. Its ostensible purpose is to force the companies to pay for stripping any and all lead paint that remains in more than 300,000 homes, apartments, schools, and other buildings. (Cost of removal: as much as $10,000 per home.) Old lead paint is perfectly safe if properly maintained, however, and stripping it can actually make it more dangerous by spewing hazardous particles into the air. The most cost-effective, and arguably the safest, remedy is for homeowners and landlords to clean up any crumbling or flaking lead paint and periodically seal surfaces with a new coat of paint or sealant.

For these reasons, few homeowners or public officials choose to strip lead paint from their buildings. And even if plaintiffs win big awards, it seems questionable how much (if any) of their winnings they would use to strip old paint. Indeed, one law firm assured Texas school districts from which it was seeking a 40 percent contingent-fee deal that "it doesn’t matter at this point" whether their school buildings actually contained any lead paint, and that officials would be free to spend winnings "for any appropriate purpose," leaving any lead paint right where it is.

Whether any of these lawsuits will succeed remains to be seen. More than 50 have already been dismissed, on various legal grounds. But the paint companies are still worried, and their stocks have been depressed by fear that one or more angry juries could scapegoat them for the suffering of lead-poisoned children and hit them with ruinous verdicts.

Where would these millions of dollars come from? Ultimately from American consumers, in the form of higher insurance premiums and prices; from stockholders, including the pension plans that invest the savings of many middle-income Americans; and from the employees who would lose their jobs if companies were driven into bankruptcy.

Where would the money go? About half or more, including the defense costs already incurred, would probably go for legal expenses. The rest would go into public treasuries. That might seem like free money for the government and an indirect benefit to taxpayers. But in effect, the trial lawyers would be taking two dollars out of the pockets of consumers for every dollar they won for taxpayers. And all taxpayers are also consumers.

These lawsuits seek punitive damages based on claims that company executives downplayed and failed to give customers adequate warning of the health hazards of lead paint. But there is no evidence that company executives ever actually concealed any hazards of which they were aware. Indeed, they helped uncover the hazards by funding independent research. And these companies had all stopped selling the stuff for interior use by 1955, when a voluntary industry-wide ban took effect. That was more than 15 years before the government imposed any restrictions on sales of lead paint.

In any event, the whole argument among the lawyers about what executives should or should not have done 50, 60, 70, or 80 years ago seems a bit beside the point. You cannot punish a dead man by mulcting the company he once ran. And you cannot deter today’s executives from selling unsafe products by engineering legal precedents that might be invoked against their companies 50 years hence. That’s one reason for statutes of limitation, which were written to bar lawsuits over long-past events and have been invoked by some judges to dismiss lead-paint suits. But these and other restrictions on stale litigation have become riddled with exceptions.

The legal system rightly treats corporations as fictitious "persons" who should ordinarily pay damages for the harms they cause, for two reasons: to compensate victims and to deter unsafe conduct in the future. But this legal fiction cannot justify lawsuits that will neither deter any unsafe conduct nor compensate any victims. Corporations are collections of employees, executives, and stockholders. The defendants in these cases include none of the employees or executives, and few of the stockholders, who made or sold or profited from lead paint. The notion that the law should penalize people for ancient wrongs in which they played no part is deeply irrational. It is also, alas, deeply ingrained in our legal culture.

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This scandal in turn dramatizes how our lawsuit industry often operates as an engine of injustice-and as a drain on the economy, an inadequate vehicle for compensating people actually harmed by corporate wrongdoing, and a transparent fraud in its pretensions to punish those responsible for such wrongdoing.

One development was the September 25 testimony of a lawyer who told the Senate Judiciary Committee that asbestos litigation has become "a national disgrace" because of "a perverse entrepreneurial model in which clients are recruited by lawyers who then file suit even when there is no real illness." Familiar stuff-except that this was a plaintiffs’ lawyer, Steve Kazan, of Oakland, Calif., who has represented victims of real, asbestos-induced cancers and their families for nearly 30 years. Kazan holds no brief for corporate America. His complaint is that by helping to drive some 60 companies into bankruptcy, the flood of claims by unharmed plaintiffs has served both to delay and to "severely reduce the compensation awarded to the sick."

It has come to this: Lawyers for real victims who are sick and dying have been forced to join corporate defendants in seeking reforms to fight the rapacity of trial lawyers who round up claims that often appear to involve "fraud, physician incompetence, or failure of recollection by claimants," as Kazan said in a letter to colleagues last October. According to estimates by other experts, fewer than 10 percent of new asbestos claimants have asbestos-induced cancer and at least 60 percent to 70 percent have no medical impairment at all, just chest X-rays purporting to show scarring of the pleural membrane.

The other development was the September 24 opening of a mass trial in Charleston, W.Va., that shows how utterly our judicial system has abandoned any pretense of fairness in resolving asbestos claims, as judges force defendants who did little or nothing wrong to "compensate" claimants, many of whom are neither sick nor likely to become sick from asbestos.

West Virginia’s courts ordered more than 250 companies to defend themselves in a multiphased mass jury trial against some 8,000 plaintiffs who claim that they were exposed to various products containing asbestos, in various ways, at various times, in various places, all over the country. Most of these companies have recently settled-not because of any proof that they had harmed the plaintiffs, but because the courts have stacked the deck, threatening even blameless defendants with huge punitive awards by making it virtually impossible for jurors to sort out which plaintiffs have real injuries and which defendants (if any) had any role in causing them.

This is not to deny the responsibility-indeed, the criminality-of some malefactors of wealth and the companies they ran for concealing the deadly danger of inhaling particles of the once-ubiquitous insulating material. These executives helped doom 2,000 to 5,000 people a year to horrible deaths, mostly from malignant mesothelioma and lung cancer, and left tens of thousands of others with asbestosis, a usually nonfatal but sometimes disabling lung disease.

But that was many decades ago. All of these malefactors are dead. And the companies that they once headed-asbestos manufacturers such as Johns-Manville and others that profited by concealing the dangers-were long ago driven into bankruptcy, where they have more recently been joined by others that did little or nothing wrong but were sued anyway because they were (once) solvent.

So the costs of the current asbestos litigation-which are estimated to exceed $50 billion already and could reach $275 billion-are paid almost entirely by people who did nothing wrong. The immediate targets for legal fleecing are the stockholders-including many rank-and-file employees who have seen their retirement savings (and in some cases their jobs) evaporate as share values plunged toward zero-of the more than 6,000 companies that have been dragged into lawsuits over asbestos products that were at most peripheral to their businesses. Then there are the insurers, whose asbestos liabilities will exceed their total payments for the 9/11 attacks.

The defendants represent such a wide swath of the economy that the payments extorted from them are inevitably spread through higher prices and premiums to the rest of us. The bottom line is that judicially empowered asbestos-litigation looters have imposed a multibillion-dollar annual tax on America’s consumers.

Where do these billions go? An estimated 57 percent goes to enrich both the plaintiffs’ attorneys-some of whom have made hundreds of millions of dollars-and the defense lawyers, and to cover other legal and insurance costs, according to a new Rand study. Only about four dollars in 10 goes to claimants. And much of that money goes not to sick people or their families but to thousands of unharmed claimants. Their claims have severely delayed and reduced the compensation available to the thousands who suffer from asbestos-induced cancers and severe asbestosis.

How did the courts let matters get to this point? Partly through well-intentioned shortsightedness. By 1980, there were so many seriously ill asbestos plaintiffs as to overwhelm the courts’ capacities to hold individual trials. And because asbestos-induced illnesses typically do not become manifest until many years after exposure, traditional legal rules would have left many victims uncompensated. These problems understandably prompted many judges to bend the rules to help plaintiffs win, consolidating thousands of cases and pressuring defendants to settle. Especially in plaintiff-friendly jurisdictions where forum-shopping claimants cluster, some judges relieved plaintiffs of the burden of proving either that they were sick or that any of the defendants had exposed them to asbestos.

This served as a standing invitation for aggressive lawyers to use scientifically suspect mass X-ray screenings to recruit more and more plaintiffs (such as textile workers) who might have some pleural scarring from inhaling asbestos dust but are unlikely ever to suffer any ill effects, and to sue ever-more-peripheral defendants. So it is that we have seen an explosion of new asbestos claims-90,000 in 2001 alone-more than 25 years after regulators severely restricted use of the substance. With as many as 100 million Americans having experienced some occupational exposure to asbestos, the supply of potential plaintiffs is nearly inexhaustible.

Most defendants settle even the weakest claims because they cannot run the risk of going to trial. That is the lesson of such verdicts as the one in Mississippi last October in which the jury hit three companies for an award of $150 million to six plaintiffs whose supposed asbestosis was so mild that none even claimed to have incurred medical expenses or missed a day of work.

Legal ethics? Lawyers have recruited thousands of healthy plaintiffs with advertisements like this: "Find out if YOU have MILLION DOLLAR LUNGS." A 20-page document prepared by the Dallas firm of asbestos-litigation kingpin Fred M. Baron, headed "Preparing for Your Deposition," advised claimants: "It is important to maintain that you NEVER saw any labels on asbestos products that said `WARNING’ or `DANGER.’ " When this came to light in 1997, Baron’s firm blamed the language on an overzealous paralegal, while maintaining it was not improper because the firm also advised clients to tell the truth. But according to a 1998 investigative report by the Dallas Observer, the document was part of a pattern in which Baron’s firm "invented testimony, encouraged witnesses to lie, and implanted memories in workers whose claims that they were harmed by asbestos are, in some cases, dubious." Baron’s firm is hardly unique.

Baron has repeatedly denied wrongdoing. At the Senate Judiciary hearing, he defended the asbestos-litigation industry-from which he has reaped an enormous fortune-as fair and efficient. Baron testified on behalf of the Association of Trial Lawyers of America, of which he is a past president. ATLA is a huge campaign donor to congressional Democrats, and members like Baron are the biggest donors to many of the elected state court judges whose sometimes-shocking rulings have helped make the lawyers so rich.

The U.S. Supreme Court has essentially thrown up its hands at what it once called "the elephantine mass of asbestos cases," while repeatedly urging Congress to do something. So far, Congress has done virtually nothing. The main reason: Many members have been bought and paid for by malefactors of wealth.

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Little League coaches move Joey, their second baseman, to fill in for an absent outfielder-only to be hauled before a jury and ultimately forced to pay a $25,000 settlement after Joey loses a high fly in the sun and gets hit in the eye. (The coaches should have given Joey fly-ball-in-the-sun instruction or flip-down sunglasses, his parents claimed.) Another Little League game is canceled when the umpire fails to show up, because parents who would like to fill in are afraid they might be sued if someone gets hurt. Car dealers, fearing liability, turn away customers who want them to disconnect air bags that can injure small children. Some churches have begun to discourage ministers from counseling troubled parishioners. An artificial fireplace log carries this warning label: "Caution: risk of fire."

Underlying these and countless other perversities, argues a crusading would-be reformer named Philip K. Howard, is a fundamental legal, cultural, and philosophical shift-"the triumph of individual rights over authority"-carried to senseless extremes. "Legal fear," Howard says, "has infected the daily choices of Americans."

By exalting the "right" of any angry individual to haul just about anybody into court for just about anything, we have all become less free to do what we think is right and focus on the common good, Howard asserts. So wary are we of subjective value judgments by people in authority (ranging from kindergarten teachers to mayors), and so enamored are we of supposedly neutral decision-making based on "proof" of the unprovable, that the rulebooks become ever-thicker and more incomprehensible, the bureaucracies become ever-vaster and more impersonal, and due process runs amok, smothering the discretion of teachers, principals, police officers, environmental regulators, judges, and others to follow their best instincts and get things done. Peter’s right to sue the school for disciplining his disruptive kid supersedes Paul’s desire to learn in a quiet and orderly classroom.

The tall, engagingly evangelistic Howard, author of an influential 1995 best-seller titled The Death of Common Sense, argues these points gracefully (albeit polemically and a bit repetitively), with examples by the dozen, in the newly revised paperback edition of The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom, first published last summer. But this author is not content merely to write books, practice law, and take on real estate interests as a community activist in New York City, where his day job is representing corporate clients as a senior partner of Washington-based Covington & Burling. (His firm, he notes, has "profited on the defense side" of various "lawyers’ feeding frenzies."oward has enlisted an eclectic group of savants and business leaders as board members of a new organization, The Coalition for the Common Good, to prepare a frontal assault on the "rights revolution" that has transformed the law and permeated our culture over the past 40 years or so. The first order of business will be to commission opinion polls to measure the effects that legal fear has had on medicine, and legal "rights" have had on K-12 education, to name but two examples.

"Intending to check abuse of authority, we transferred power to every angry person to bully society," Howard asserts in an interview. "The cure has become the disease. People are hungry for some way of breaking the logjam. I’m offering a new way of looking at it."

Not entirely new, of course. People have been complaining about dumb lawsuits for decades. And Howard weaves into his arguments quotations from thinkers such as Aristotle, de Tocqueville, Ralph Waldo Emerson, Benjamin Cardozo, and Vaclav Havel. But he probes more deeply than tort reformers, and his ambitions are more radical. Howard wants "an overhaul of legal structures to restore authority to balance claimed individual rights with the common good" and "a new deal for public employees and teachers, which in exchange for exposure to personal accountability, liberates them to use their judgment, instinct, and values." This may seem quixotic: "It’s not an easy thing to change a philosophy," as Howard puts it. But his analysis is insightful and original enough to help us see our world more clearly.

How do more rights make us less free? These days, Howard explains, "rights in our daily thoughts concern suing and being sued by other people." But a lawsuit "seeks to use government’s compulsory powers to coerce someone else to do something…. The point of freedom is almost exactly the opposite: We can live our lives without being cowed by use of legal power."

Of course, the rights revolution has made some of us more free some of the time. High school students are free to wear black armbands in class to protest whatever offends them-or to disrupt classes, shout obscenities at teachers, or even assault them without fear of expulsion or serious discipline. Patients are free to sue doctors for amputating the wrong leg-or for failing to do expensive tests that no good doctor would consider medically appropriate.

At the root of the problem, stresses Howard, is the unwillingness of modern judges to do what their greatest predecessors, such as Cardozo, considered essential: Make the value judgments necessary to dismiss weak lawsuits. The result is that the value judgments are made by juries, which used to be limited to resolving factual disputes and which now reach dramatically different conclusions from one cause to the next about, say, how hot take-out coffee should be. Unlike judges, juries have no power to make legal rules upon which the next defendant (or plaintiff) can rely. So nobody can be confident what the law is. In an era of gargantuan damage awards, this means that an unwarranted lawsuit with a 1-in-10 chance of winning can force a blameless defendant to pay a big settlement.

The ripple effects extend far beyond the courtroom. Howard’s leading example is the classroom. The inability of teachers and principals to keep order "without attacking a hornet’s nest of rights," he says with characteristic hyperbole, is "ruining the education system." Meanwhile, civil service rules and teachers’ rights to seek legal redress if fired, suspended, or even given unflattering evaluations without "due process"-which might mean having to prove gross misconduct at a formal hearing, with lawyers, witnesses, and other trappings of a trial-has made it nearly impossible to get bad teachers out of the classroom. "How do you prove that someone has bad judgment? Or doesn’t try hard? … Or wasn’t really sick every other Friday?" asks Howard. "Judgments about who is doing a good job, more than most, are essentially unprovable." So are value judgments.

Champions of the rights revolution scoff at such critiques as overblown and anecdotal. How hard can it be to give someone a little due process? This hard, says Howard: While surveys of school administrators suggest that between 15 percent and 20 percent of teachers are not fit to teach, "between 1991 and 1997, only 44 out of 100,000 tenured teachers in Illinois were dismissed," and in California, "62 out of 220,000 teachers were dismissed during a five-year period."

Most of us can see legal fear at work in our daily lives. Maybe you had to hand over your child for a year to a teacher who could neither teach nor be fired. Maybe you have a friend who (like mine) was a happy, dedicated kindergarten teacher but lost her enthusiasm when assigned to fifth grade, because a few disruptive students ruined the learning environment for the whole class. Maybe your sister-in-law (like mine) decided to become an emergency medical technician, only to find that the first two classes focused on avoiding lawsuits, not saving lives. Or maybe you know a business owner who (like one I know) refuses to give former employees references of any kind-favorable or unfavorable-lest someone sue for unequal treatment.

Help is on the way, however. All Philip Howard has to do, in his spare time, is spark what he calls "a popular movement to overcome the inertial forces and vested interests that have a death grip on the status quo," reform "an oppressive legal structure," and get the Supreme Court to rethink a bunch of constitutional law. In your head, these are difficult issues that experts say Howard oversimplifies. In your heart, you know he’s mostly right.

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