Thousands of lawsuits are discussed in courts in the United States every day, and there is a tremendous quantity of lawyers per capita. (Olson, Excerpt 1) Since other advanced democracies around the world cannot compete with such high numbers, experts, advocates, and ordinary people ask if there has been a litigation explosion, apparently leading to higher cost for society, and damaging the reputation of the American legal system and its participants. Many causes have been named such as greedy attorneys, whiny plaintiffs, and lavish insurance businesses. The following paper will discuss how the United States has become litigious and strongly refers to Thomas F. Burke’s book Lawyers, Lawsuits, and Legal Rights, which gives structural explanations and case studies. Furthermore, the essay will examine how reasonable Burke argues, and look into reform possibilities and the progress made.
Opinions on litigation are divided. Some theories state that the apparent explosion of litigation is backed by the corruption and decay of American society. An often accepted theme is that greed and aggressiveness are more important than common sense, therefore bringing litigation out of control. This view solely aims at the individual’s decision to file a lawsuit and neglects the notion that there are other litigious forces, such as business interests that create a certain litigious image of society. It also misses the sometimes unfamiliar vast field of litigation opportunities or, as Burke calls it, “the litigiousness of American law.” (Burke 2-4) The author further explains that litigious policies are not only an alternative to bureaucracy and welfare; they also beat “the barriers to activist government posed by the structures of the Constitution.” (Burke 7)
Litigiousness derived from the strong increase in possible rewards coming from tort lawsuits, growing opportunities to sue due to discriminating circumstances, as well as new regulations regarding criminal law, initiated by the Warren Court, which administered justice during the 1960s and 1970s. (Burke 8-10) Burke’s structural explanation focuses on his constitutional theory, depicting that the Constitution’s decentralizing effects on the government “channeled many demands for action on social problems toward courts.” (13) As a result, three incentives to support litigation arise: courts appear as a safe haven for the implementation of public policies (insulation incentive); activists can better control local and state-wide actions (control incentive); and it is a beneficial option to address social problems without having to pay for it (cost-shifting incentive). (Burke 14-6) These reasons are important parts of the explanation why litigiousness has so much power in the United States today.
However, Burke dismisses the individual’s persuasion in filing lawsuits too fast for it is important to mention that a number of complainants go to court for such reasons as greed, selfishness, vengeance, and in search of answers for their agonies. Others use the media-generated picture of simple and lucrative trials with so-called “tort taxes” (Olsen, class lecture) attorneys being paid on a contingency basis. Particularly the latter makes a major difference to other countries; all across European law, for example, contingency fees were regarded as “unethical for lawyers.” (Olson, Excerpt 1) In addition, surgeon and writer Atul Gawande mentions the interesting point that the public often looks at the aspect of accountability; that is, people should take care of consequences due to individual mistakes.
(67) Last but least, there are strong defenders of litigation such as academic researchers, attorney lobbies, the Democratic Party, consumer and liberal groups, and sometimes judges. (Burke 44-57) Burke’s structural composition goes hand in hand with three case studies, which are supposed to be “serious legislative antilitigation efforts.” (58) They relate to the above mentioned ideas of resistance and replacement, can be compared to other nations similar to the United States, and vary in their outcomes. (Burke 58-9) The author explains the origins of litigious courses by means of the Americans with Disabilities Act (ADA). He then leads over to failed antilitigation attempts with the help of the struggle over no-fault car insurance in California. Burke also discusses the vaccine injury compensation program when he takes a shot of antilitigation reform. All three cases refer to systemic structures and not to the alleged readiness of greedy American citizens to litigate because there is not a lot of evidence for such statements except for the fact that U.S. public policy is court centered. (Burke 171) By connecting the already mentioned incentives (insulation, cost-shifting, and control) to the individual cases, Burke creates a reasonable and authentic framework for his main conclusion that the clash between seeking justice on the one hand and the decentralized constitutional customs quickly lead to litigation, and “is the price Americans pay for aspects of their nation many hold dear.” (204)
What can be done against the apparent litigation explosion? Burke describes several paths to reform but concentrates on two distinctive methods. First, filing lawsuits should be discouraged in order to “reduce the volume and intensity of claims”, although that does not solve the overall problem of litigation. (Burke 18, 35) Second, certain parts of litigation have to be replaced with alternatives. (Burke 18) In the case of personal injuries, for example, Atul Gawande recorded that funds, exclusively collected for people injured by vaccines, can function as compensation and avoid future expensive disputes in front of a judge. This solution is beneficial both to hypothetical plaintiffs and vaccine suppliers, but also faces the big challenge of allocating compensation and identifying who deserves to be compensated. (Gawande 70) Burke also mentions several obstacles to replacement reforms which explain why there has not been major progress so far.