We're reaping what we sue

By George McGovern

and Alan K. Simpson ~ The Wall Street Journal

America's institutions, at least the most important ones, are in sad shape. Health care and education are so weak that a steady stream of disjointed reforms, a sure sign of desperation, almost seems like regular management. Our system of justice, long America's greatest pride, has become an object of ridicule, noted for its shock value rather than any balance. What will some lucky litigant rake in today? These institutions are not failing because of lack of resources. America has more doctors and spends more money on health care than any other society, yet over 40 million remain uninsured. Nor have Americans stopped caring about our common good. Parents care passionately about our schools. Dedicated teachers and principals are the rule, not the exception.

Yet no cure is in sight. Reformers aren't even looking in the right direction. What is missing is not an ingenious idea on how to teach children, or how to make health care more efficient. Nor is anyone close to inventing some new legal software that will make justice more fair. What is missing is the human ingenuity and judgment needed to get any job done properly.

Up and down the levels of responsibility in schools, hospitals and courts, "can do" has been replaced with "can't do." Talk to teachers and doctors, and their frustration erupts. Teachers feel crushed by bureaucracy and no longer have authority to maintain order in classrooms. With doctors, the situation is worse. A new poll suggests that doctors, instead of focusing on the best medical judgment, worry more about protecting themselves from potential lawsuits. Legal fear drives them to prescribe medicines and order tests, even invasive procedures, that they feel are unnecessary. Reputable studies estimate that this "defensive medicine" squanders $50 billion a year, enough to provide medical care to millions of uninsured Americans.

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.

How law went wrong is laid out in a recent book by lawyer and civic leader Philip K. Howard. In "The Collapse of the Common Good," he 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.

To revive our institutions, we must first fix law. If doctors don't trust justice, we will never obtain the judgments needed to make health care work sensibly. If the basic authority of teachers and principals can be undermined by legal threats, schools can never be fixed. Society needs red lights and green lights. Otherwise, people creep through the day fearful of being blindsided. Failure has become the status quo in many schools and hospitals because legal fear and bureaucracy have paralyzed decisions of teachers and doctors.

That is why we -- an ardent Republican and an ardent Democrat -- are announcing a new bipartisan coalition, Common Good (www.ourcommongood.com1), to advocate a basic overhaul of our legal system. Other prominent Americans are joining too: former members of Congress like Newt Gingrich and Paul Simon; former Attorney General Richard Thornburgh and Deputy Attorney General Eric Holder; university heads Tom Kean, George Rupp and John Silber; noted experts in education, medicine and law; and business leaders like Pete Peterson, Shelly Lazarus, and Harry Kamen. Our goal is not to agree on what judgments should be made, but to restore the authority to make these judgments.

The first priority is justice itself. 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. Distrust by doctors is so great that medicine now may need a separate system of justice that can more reliably distinguish between good care and bad care.

To rejuvenate our common institutions, we must fix America's legal system. We ask like-minded Americans to join us in this effort.

George McGovern, a former Democratic U.S. senator, and Alan K. Simpson, a former Republican U.S. senator, are members of the advisory board of Common Good.