My biggest complaint with the civil justice system isn’t the system itself, but us. You know, Americans. We’re the ones who have adopted the idea that anything, and I mean anything can be litigated. Everything is open for review by fifteen strangers: twelve people off the street, two paid advocates, and a judge. There is no aspect of human interaction – business, personal, intimate, property – that can’t be hauled into a court at a later date for a do over. You may be thinking great, we need more oversight. But there is a penalty for all this, both in terms of direct costs paid to the practitioners and the opportunity costs in changed behavior. And our civil system doesn’t even protend to be speedly like our criminal system. Cases can drag on for years, which means that not only is everything subject to review, but it can be years before anything is final. That surely has to be a big drag on invention, risk taking, and business in general.
Another facet of the problem is that when you have breakthroughs in technology or science, everyone benefits. When you have breakthroughs in finance, everyone benefits as improved financial helps new ventures get financed. These breakthroughs are driven by the quality and number of people involved in these fields. But when it comes to law, it seems that breakthroughs there only benefit lawyers, which only increases the attraction to a field that is way over represented and talented in America. The explosion in class action lawsuits hasn’t done a thing for the average person — if anything it’s hurt them overall, but it sure has made a bunch of lawyers wealthy beyond the dreams of avarice.
It used to be that farsighted rulers would periodically reform the legal code (Hammurabi was the first recorded). I know the legislatures across the land are too busy with far more sexy and immediate stuff, but I think we’re getting to the point that we really need to consider the kind of top to bottom overhaul to rein in the reach of lawsuits and combine it with a wholesale pruning of government regulation. But that won’t happen until we demand it. Just having a “business friendly” Supreme Court Justice doesn’t cut it.
