November 6, 2006
More on the Courts Posted by Fredric Smoler at 09:25 PM EST John Steele Gordon writes that the correct phrase is the English Rule, not the British Rule, and that under it costs are assigned to the loser. He is right on both counts. When I wrote “assigned,” I meant awarded to, but I did not write what I meant. He also writes that contingency fees have nothing to do with punitive damages, which is true in the abstract, but what I wrote was that “contingency-fee litigation plus the possibility of punitive damages tilts the board a bit,” toward the plaintiff lacking the means to go to court. Contingency fees, in combination with punitive damages, give lawyers incentives to take on poor clients, and that keep the courts open to people who could not otherwise seek redress. Mr. Gordon agrees (in part) about contingency fees, and proposes one apparently modest change in the law, forbidding contingency fees if a client is willing to go with fee for service. Off the top of my head, I don’t see a problem with that change, although I shall ask some lawyers, to see if there is any reasonable objection. Mr. Gordon also notes that the English rule discourages litigation, and that the American rule encourages it. Again, we agree. But I do not object to encouraging civil litigation—civil litigation is how people are supposed to achieve justice—if there are effective deterrents to frivolous litigation. Two deterrents exist under current law, sanctions against the lawyer and assigning costs to the loser (in egregious cases, this can be done in the United States). The problem is that these deterrents are ineffective, because both measures are rare. Mr. Gordon claims that this is because judges are in the pockets of trial lawyers. The lawyers I know concede that these punishments for frivolous litigation are too rarely employed, but they claim that this is because judges want to keep the courts open and fear that sanctions and costs awarded to the victor will discourage people from seeking justice. I think these lawyers are sincere in this claim, for they are themselves exasperated by frivolous litigation. In terms of Mr. Gordon’s implication that Congressmen receive comparable campaign contributions and comparably effective lobbying from credit-card companies and credit-card debtors, we differ. Credit-card debtors are generally unorganized and in many cases light on spare cash. Credit-card companies are well organized, and very rich. Mr. Gordon asks, “Does Mr. Smoler think that a well-funded congressman who got contributions from just one industry, the industry regulated by the committee upon which the congressman sits, would draw no attention?”. Actually, when the industry pushed through the most recent change in bankruptcy law, it was (in many of the papers I read) something of a scandal. It did get some attention, but shame is not always a perfect deterrent to Congress. In terms of Mr. Gordon’s belief that only trial lawyers make campaign contributions to judges, thus judges rule badly, and that as a result we should stop electing judges, I am doubtful. Industries annoyed by trial judges can fund their opponents at reelection time and have recently done so. Should we not elect judges because foreigners disdain that vulgar populist practice? By my lights, electing people is something of an American tradition, and one about which I am sentimental—bloody footprints in the snow and so forth. When it produces outcomes unwelcome to a particular group, enthusiasm for democracy tends to wane in that group. For example, some of my colleagues deprecate “bourgeois democracy,” but I suspect their sentiments would change if their candidates won some elections. As of now, a fair percentage of the Federal judiciary has been appointed by Republican Presidents, which might possibly account for some people’s relative enthusiasm for it. Liberals used to love the Federal bench and scorn state judges—this was back during the civil rights movement. Some liberals, despairing of the Federal bench, are now enthusiasts for the state courts. Call me crazy, but I somehow think comparable phenomena occur on the right.
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