America's #1 Domestic Problem

There is a culprit here: our legal system. Law, as we sometimes forget, is the foundation for all social dealings. When law is not trusted, people begin to feel uncomfortable in dealing with each other. People stop doing what's sensible. A healthy system of law should make people comfortable doing what's right, and nervous doing what's wrong. Today, law makes people nervous in doing practically anything.

The evidence is all around us. Ministers in some churches have stopped counseling parishioners because, who knows, there might be a lawsuit if the couple later gets divorced. Ridiculous warning labels are now tacked onto practically every product. Much like the young shepherd crying "wolf," these labels discourage people from paying attention to the warnings that are really needed.

Will, McGovern, and Simpson all refer to Philip K. Howard's book "The Collapse of the Common Good," who, according to the latter two:

...shows us how, in trying to guard against real and perceived abuses of authority in the 1960s, reformers removed the authority of judges, principals and teachers to make commonsense choices. The theory was that each dispute would now be resolved as a matter of individual rights, where the claimant would either prove his claim or not.

But the theory has a fatal flaw: Many disputes in social settings involve value judgments, not "proof." All that's needed to bring a lawsuit is a theory. In hindsight, it is often easy to think of something different that could have been done. Resourceful lawyers soon learned they could bring lawsuits for almost anything, and in almost any amount. The idea of "rights" was turned upside down, from being a shield against abuse to being a sword for personal gain.

But the law is not supposed to be a sporting contest. It is supposed to provide guidance of what's right and what's wrong. Oliver Wendell Holmes once defined law as "the prophesies of what courts will do." Today, people have no idea what a court will do. That's why Americans have become fearful.

McGovern & Simpson (along with Richard Thornburgh, Newt Gingrich, Paul Simon, Eric Holder, Tom Kean, George Rupp, John Silber, Shelby Steele, Mary Ann Glendon, Pete Peterson, Shelly Lazarus, and Harry Kamen among others) are supporting Philip K. Howard's new effort called Common Good, which was created to "advocate a basic overhaul of our legal system." From the Common Good website:

Common Good is a bipartisan initiative to overhaul America's lawsuit culture. Fear of litigation has undermined our freedom to make sensible decisions. Doctors, teachers, ministers, even little league coaches, find their daily decisions hampered by legal fear. Our system of justice, long America's greatest pride, is now considered a tool for extortion, not balance.

To the extent that our social institutions are dysfunctional, much of it can be traced to the shortcomings of our legal system--which sucks resources, perverts behavior, and intimidates common sense.

As the senators put it: "Lawsuits, a vital tool of justice, support a free society only when judges and legislatures take the responsibility of deciding who can sue for what. Otherwise, fear replaces freedom."