All Commentary
Monday, April 1, 1991

The Roots of the Liability Crisis

James L. Payne has taught political science at Wesleyan, Yale, Johns Hopkins and Texas A&M. He is a Research Fellow at the Independent Institute in Oakland, California.

Swapping stories about the outrages going on in American courts these days is like playing “Can you top this?” There seems to be no limit to either the size of the awards or the frivolity of the lawsuits. This system of sue, sue, sue costs us billions in lawyers’ fees and insurance premiums. This cost is, in effect, a tax on virtually all public and private activities, from running Boy Scout summer camps to delivering babies.

The liability system has gotten so far out of hand that it’s starting to gobble up our civil liberties too. Consider the case of Larry Fine. Fine is a piano technician who wrote an excellent volume entitled The Piano Book, in which he gave a frank assessment of the virtues and defects of each brand of piano. The first edition of the book appeared in 1987. In preparing a second edition for 1990, he sent all manufacturers a copy of his proposed evaluation of their pianos, asking for comments and corrections. Most manufacturers, he reports, were “gracious in accepting criticism.” Some, however, reacted negatively, even using their attorneys to suggest possible lawsuits. As a result of this pressure, says Fine in the preface of the second edition, “some reviews have been ‘softened’ a little to keep the peace and avoid expensive litigation.”

One company, a famous American piano maker, I’m sorry to say, was especially threatening. Fine reports it “sent a letter saying that if I published the reviews the company might file a lawsuit against me.” Fine pondered this threat and realized that “even lawsuits that have no merit can be prohibitively expensive and time-consuming to defend oneself against.” He decided to delete the reviews of the company’s pianos from the second edition.

So there it is: censorship. Violation of freedom of the press courtesy of the great American liability system. Fine could not say what he wanted to say, and his readers could not learn what they wanted to learn because of the threat of a lawsuit. If we keep going down this road, will we have any freedom of expression left? Will a movie critic pan a film, or an auto magazine rate a car?

What can we do about this problem of rampaging “sue-itis”? The starting point is to take a clear view of what a legal system really is. The courts with their judges, lawyers, and laws are, at bottom, simply a complicated arrangement for applying physical force. This is the system that directs policemen, jailers, and SWAT teams. If someone is being violent, then this system of deploying force is necessary to restrain him. That is the mundane task of a proper judicial system. It is socially necessary, but not an activity that reflects man’s higher nature.

In the modern era, this view has been obscured. The courts seem an attractive institution, and we see litigation as a noble, patriotic way of accomplishing our goals. We fail to realize that in suing or threatening to sue we are actually reaching for the use of force against others. It is true that the “legal” use of force is generally a little less destructive than using force directly ourselves. If you are so angry at someone that you feel you must use force, then it’s better to use force through the courts than on your own. But you shouldn’t be very proud of what you are doing. You shouldn’t have this anger and this urge to use force against your neighbor in the first place.

It’s easy to overlook this moral perspective, given the example of government, which has gotten itself so deeply into the coercive regulation of practically everything. With thousands of special interests descending on Washington to use the force of the state to get what they want, we say, “Why shouldn’t I use a little of the force of the state to get what I want?”

But if we think about it honestly, we know it’s true: nice people don’t sue. The ancient Christian teachings are explicit on this point. Paul, in his first letter to the Corinthians, criticized his followers for using the courts. “When one of you has a grievance against a brother, does he dare go to law before the unrighteous instead of the saints?” he asked. “Can it be that there is no man among you wise enough to decide between members of the brotherhood . . . ? To have lawsuits at all with one another is defeat for you.”

The politicians may be able to patch over some of the worst problems of the liability system. But real reform awaits a change in the attitudes that are at the root of the problem. It awaits an awareness that the use of aggressive force, be it private force or governmental force, is an unsound approach to our problems.