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Legislation and Litigation: What Am I Doing Here?

A better question to start off would be, "Where am I?" Where we are, and how we got here are rather complicated. The two questions are interrelated. Though the growth of legislation and litigation may seem unrelated, they have some common roots and problems. Though connected, legislation and litigation are addressed separately.

Legislation. We have gradually - and recently not so gradually - gotten to where we have a system of very complicated laws. Virtually everything in our lives is both regulated and taxed in some manner. Even air, which we normally view as free, can only be enjoyed when standing on real estate that is either taxed or maintained by tax dollars or by traveling in some sort of vehicle which has been taxed and the travel in which is taxed. The air itself is very heavily regulated. While much of the regulation can be beneficial, we have too many laws, and many of those we need are far too complicated.

In addition, it is almost impossible to keep up with what is being done with respect to our laws. It is not enough to see what Congress or our state or local legislative bodies are doing. Over the last 60 years it has become a common practice to delegate to a regulatory agency rule-making authority for the fine points of laws. While some regulatory agencies are needed to oversee implementation of laws, the broad rule-making authority regularly granted is often not needed. Some rule-making authority is actually complete legislative authority which is far beyond the scope of what was intended when the courts first started allowing for delegation of authority by Congress to an agency. A perfect example is the Occupational Safety and Health Act.

OSHA has two guidelines for rule-making. The first guideline is that the agency is to choose the best practices for worker safety in establishing safety regulations. The second guideline is that, if the agency does not believe that the supposed best practices are in fact the best, then the agency can essentially choose whatever standard it wishes. In other words, Congress has told the agency, "Here is an area where we want a law; now make the law." None of the Constitutional safeguards apply in such a situation. We cannot choose or throw out the people who make the rules, since they are not elected. The President cannot veto the rules since they are not acts of Congress. The courts normally will not upset the rules as long as they are within the guidelines - in this particular case no guidelines - and are adopted using the proper procedures. This is no way to run a country and is not what the Constitution provides.

 How did we get here?

It has been a slippery slope which has brought us here over just a short few decades. Not all of the forces contributing to the situation are obvious. Congress and the Courts have had their part in the change. However, the expansion of information, the influence of the press, the emphasis on secular humanism - essentially the belief that man is independently perfectible - and other factors have all influenced this trend.

The efforts of Congress and the Courts are noted above. Initially the Courts rejected delegation of authority by Congress. Then gradually the Courts began to accept delegation of authority in areas dealing with interstate commerce. The Courts also began to allow Congress to broaden its reach into essentially local matters through the interstate commerce clause in the Constitution by determining whether a matter to be regulated might affect interstate commerce. The real break came in 1942 when the Supreme Court ruled that Congress could pass legislation concerning local farming controls because the raising of grains in one location for a farmer to feed to his own livestock could impact the shipment of grains from another state into the state where the grain was raised. See Wickard v. Filburn, 371 U.S. 111 (1942). Thus, interstate commerce could be affected by what would to most seem like a purely local activity - raising crops to feed your own animals. The floodgates were opened.

Increasing access to information at a faster pace provides an interesting impact. When most of the news came from the local paper or was aired on the local radio station, it was local, and our focus was more on local information. State and national information came to us more slowly than local news. Now state, national and international information all come to us more quickly. One result is that we tend to relate matters to each other when we see essentially the same problem arise in different places. We lose track of the fact that the best way to deal with such problems or the problems themselves, while similar, are essentially local. For instance, several years ago in Ann Landers I read a letter by a lady who wanted to start a national movement regarding a certain aspect of animal cruelty which she had witnessed in her own hometown in one state after she had read about a similar incident in in another state. Both occurrences were strictly local. While the method of dealing with the problem in each instance may have been somewhat similar, the best way to deal with each problem was locally with emphasis on the values and behaviors of the individuals involved. Starting a national organization to publicize and to talk about the problems removed any sort of civilizing aspect of direct criticism. Each individual involved in the separate instances would not have to deal with personal consequences for the actions when the response was a national discussion of the problem. The discussion of the incidents in a public forum away from individual criticism and opprobrium actually ducks the best means of dealing with the instances. The effort only salves the conscience of the person who wants to note the problems without having to address directly the persons involved in each instance.

The fast movement of large quantities of information  noted above is related to the influence of the press on our lives. Throughout much of the period during which there has been a growth in complicated legislation, the national press - the major newspapers and network television and radio - have provided most of our national and international news. With the expansion of the internet and the increased influence of cable television, our news sources have become more diverse. But, regardless of one's feeling about bias in different media, the impact of the national media has been significant. Such media tend to make us look at essentially local matters as if they were national, and as if some sort of national solution were needed. Part of this tendency is natural as noted above. However, to some extent it is the consequence of news media hierarchy.

It is natural for reporters to want to move from smaller markets to larger markets. Moving to a larger market provides one more exposure and more influence upon the news. A person can also make more money in a larger market. The ultimate large market involves national and international news. The top newscasters make substantially more money than do local newscasters. The high-paying jobs and attention provide a push to view problems in a national perspective. Without having national or international problems, the prominent national newspersons would not be needed. Therefore, there is a market push to make essentially local or regional problems national in flavor, even when such is not appropriate. This same tendency may explain why many in the national press corps, primarily the Washington press corps, are liberal in nature. Liberals (in today's sense, not the classical political sense) believe in more national laws to control behavior and to address problems, whereas conservatives wish to have less government and more local autonomy, primarily in the nature of individual freedom to act according to one's own best interest.

With the influence of national and international press has come national prominence for politicians and national influence and lobbying groups, whether liberal or conservative. As more focus is placed upon national politicians, they tend to view problems as needing national solutions, and many lobbyists and influence groups (by influence groups, I mean national groups of many stripes, such as Sierra Club and National Rifle Association) have increased importance in dealing with this pressure, either encouraging national solutions and fighting against them. Some commentators have pointed out the growth of importance of many of the national charitable organizations, which are supposedly non-profit. These same commentators have indicated that many of these organizations have a lot of profit. The profits just are not taxed and are not returned to owners of the organizations. Instead, the profits are stored for future use by the organizations to achieve their various goals or spent on large salaries. As we see more and more prominence being given to national matters and see more and more money being allocated for various programs, we all try to get our own part of these programs. As Bill Janis, a member of Virginia's House of Delegates, recently pointed out, we never ask a politician how many laws he helped repeal, or how he helped to stave off interference from government. Instead, we remember our politicians by and ask about the projects for which they get funding, or the laws they pass to help our own pet projects.

Secular humanism - the belief that man is independently perfectible - has had its own subtle influence upon this whole process. If you are independently perfectible, and if I am independently perfectible, but we disagree on what is the appropriate perfection, then you will believe you are right and I am wrong, and vice versa. The normal upshot is that, if each of us believe that the choice each of us makes is the right choice which, because it is perfect, should be made for all, then we have the basis for a fight over whose view of perfection is going to prevail. Since many do believe that the purpose of government is to force the views of such people upon others who do not agree with them, then the basis for the strong fights for control of government are laid. Add to this the tremendous power and control given by the breadth and financial resources of our large national government, and all of a sudden control of government and through that control of people's lives becomes very important.

What we now have, then, is the basis for a spiral of increasing complexity in our laws because of the intertwined influences of information, press, national political prominence, wealthy lobbyists and influence groups and persons who have too much of a stake in foisting their own views of right and wrong upon others. This set of interrelated influences and institutions is what keeps putting pressure upon legislation and litigation. We end up chasing our tails. We also end up destroying relationships as people become more accustomed to having conflicts and problems mediated either by the passage of legislation or the instigation of litigation.

Litigation. There has been a significant increase in civil litigation over the last 40 years which has roughly paralleled the increase in complexity and amount of legislation. In 1965 there were 67,678 law suits filed in Federal district courts while in 2000 there were 259,517 law suits filed. These figures do not include the increase in criminal suits, the increase in suits in state courts and the increase in appeals. This statistic also does not consider that many of the recent cases involve multiple plaintiffs in large class actions, whereas in the 1960's most litigation involved individual plaintiffs in individual cases. Some of this increase in litigation is due to the increase in amount and complexity of legislation. However, there are many other factors at work.

As with the increase in legislation on the national level, news and the availability of information has played a large part in increasing litigation. The more people hear about large recoveries, the more they are interested in suing if they find they have some problem. Unique litigation in one area spawns the desire for additional efforts by others to try the same type of litigation which might not have otherwise been considered by a person. Information about tort litigation is readily available on the Internet, even through heavily used portals such as Yahoo! which has a specific site for mass tort litigation information.

Marketing and advertising by lawyers has also played a huge part in the increase in litigation. Most advertising by lawyers concerns personal injury, especially for perceived, but often non-existent, injuries from products which may produce some problems in certain limited circumstances. The diet drug litigation is a prime example. Another example of an area of litigation which has taken on an unbelievable life of its own is asbestos litigation. Most persons suing companies today for asbestos problems have not had significant enough exposure for any real harm and cannot prove which company made the asbestos to which a person may have been exposed. The most recent example involves hormone replacement therapy. According to press reports, there were at least two class action suits filed within four days after the announcement was made about a possible problem with a drug containing both female hormones rather than one. As soon as there is any announcement about a potential problem, lawyers start advertising for clients to be plaintiffs without waiting to see if there really is a problem. A primary force for this advertising is to be the first with a good plaintiff and, thus, hopefully to be a principal lawyer in the litigation. That is where the money lode is for tort lawyers.

The frequent perception that anyone who has a problem is a victim adds to the amount of litigation and the quick reaction to sue. If a doctor tells a patient that there is a 95% chance that a procedure will be successful, most patients for whom the procedure is not successful cannot believe that they fall in the 5%. The immediate reaction is that someone is at fault. Thus, malpractice suits quickly follow any problems, even if a procedure was performed properly. Very few people are willing to accept the old statement that the procedure was a success, but the patient died.

With the increasing prevalence of litigation, the attitude toward litigation has changed. People now see any possible slight or misstep as a way to make money. People also often see civil litigation as a means of making someone not do something again. Though I do not handle personal injury litigation, I have had people seek preliminary advice about bringing suit and have had been told that a reason for doing so is to keep the negligent person from doing the same in the future. The purpose of civil litigation is misunderstood. Civil litigation in most instances is intended to provide compensation for a loss, not to stop someone from committing a wrong. Criminal litigation is intended to deter wrongdoers.

Lawyers abuse the system in many ways. I have seen law suits brought when the persons who want to sue have been told that they have no likelihood of winning, but only of making something, such as a development project, more expensive. People go ahead anyway in the hopes that they can gain what they are not entitled to have merely by making the other person's costs too high. Lawyers' willingness to bring litigation for such a purpose is entirely inappropriate and an abuse of the legal system. The legal system is intended to right wrongs, not to stop rights. Lawyers have the most powerful marketing tool there is. If I sue you on behalf of my client, you must go get a lawyer. This tool should not be so lightly and willingly abused. Lawyers also abuse the system during appropriate litigation by using tactics designed solely to increase the cost of the litigation in the hopes of obtaining an advantage which the facts and the law do not justify. The willingness of a lawyer to file a frivolous law suit or to participate in frivolous activities in the process of proper litigation to try to obtain an inappropriate end merely adds to costs and frustration for all, including those who buy products which reflect the costs of improper litigation or improperly conducted litigation.

Permissiveness of judges is another factor adding to litigation. At one time many of the law suits which are brought today would never have been entertained by a court. If some lawsuits, such as the McDonald's coffee suit, had been summarily dismissed as they should have been, and if the lawyers had been disciplined for filing such frivolous suits, then there would be much less tendency to sue over every perceived slight. Further, if judges did not permit hindsight to rule the litigation scene, as is primarily the case with asbestos litigation, many of the currently successful suits would not stand a chance.

Judicial activism is another factor which adds to litigation. Judges are more and more willing to make law which should be left to the legislatures when the judges' preferences for what should be done in society is not enacted by a legislature. This activism has negative consequences for society and for our political system. If judicial activism were not so great, we never would have seen the efforts to ruin perfectly fine gentlemen such as Robert Bork. The efforts of people to have various personal positions and lifestyles recognized and accepted within society have led to ever increasing efforts at legislation and, where such is not effective, litigation to have another individual liberty or right recognized. With these ever increasing efforts at recognition of rights not mentioned or envisioned in the Constitution, we have a polarization of society and extreme efforts at winning which improperly ruin reputations and degrade civility.

Ultimately, because of these and other factors, there are two things being accomplished by much of our litigation. First, perfectly lawful and often socially positive activities are made more expensive or are being curtailed because of the expense incurred through litigation. There is becoming an increasing crisis in medical services, primarily in the area of obstetrics, which is being engendered to a great extent by the cost malpractice insurance, mainly due to litigation.  Second, there is a huge wealth transfer that is being generated, to a great extent to the lawyers who prey on society through such litigation. This wealth transfer is facilitated by a vast misunderstanding of economics. Large damages are frequently awarded against corporations which are often thought to be impersonal treasures troves. However, the people who pay from these damages are all individuals. Corporations always pass on their costs, either in the way of lower compensation to employees, higher prices to consumers or losses to investors when company profits go down. Most investors today are ordinary consumers, through pension plans and profit sharing/401k plans. In short, you and I are paying a price for making a few lawyers rich.

And the cycle continues. The plaintiff's bar makes huge contributions to politicians, primarily Democrats, who then do much to stop any reasonable restraint upon this rip off of the public. These same politicians are the ones who frequently propose and enact ever increasingly complicated legislation which then adds to litigation and further enriches the same lawyers and impoverishes many of us.

These costs passed on by companies often fall hardest on the poor, since they have to pay a larger proportion of their earnings for basic goods, the costs of which are increased by the damages awarded.