- The Washington Times - Sunday, January 26, 2003

By Thomas F. Burke
University of California, $29.95, 287 pages

One useful way of thinking about law is that it constitutes a set of incentives. Most of these are intentionally created to maximize certain useful behaviors and minimize harmful ones: lengthy prison sentences for drug dealers, for example, or large fines for industrial polluters.
In "Lawyers, Lawsuits, and Legal Rights: The Battle Over Litigation in American Society," Wellesley political scientist Thomas F. Burke identifies another set of incentives embedded in the foundation of American law, one that has produced unintended consequences for our system of justice that are not always benign. If the litigation explosion has become a permanent fixture in public policy debates, then, according to Mr. Burke, American law up to and including the Constitution contains within its very structure the source of that phenomenon.
"The roots of America's litigious public policy style," Mr. Burke writes, lie not in the rapaciousness of plaintiffs' attorneys or in hit-the-jackpot attitudes of their aggrieved clients. They lie instead in "the American constitutional tradition," which "combines a profound distrust of centralized governmental power with a set of structures federalism, separation of powers, an independent judiciary designed to tame that power."
This decentralization, according to Mr. Burke, creates three specific types of incentives that fuel the phenomenon we refer to as the litigation explosion. The first of these is the "insulation" incentive, a term referring to the fact that litigation between two parties is relatively insulated from political opposition compared with, say, efforts to enact legislation or to obtain rule-making at the administrative-agency level:
"Lodging enforcement of antidiscrimination rules solely in the Equal Employment Opportunity Commission puts the future of civil rights law in the hands of whoever gains control over the commission. Allowing individuals to sue for discrimination in court scatters control over civil rights to litigants, judges, and juries around the nation."
The second incentive is the "control" incentive: Through the federal courts, activists can control the actions of state and local bodies prisons, police departments, boards of education that might be immune from standard forms of political pressure. Brown v. Board of Education (1954) is the seminal case here, but examples abound from the 1960s, '70s and '80s, in which federal district judges dictate policy choices to school districts on busing plans, for example, or in prison oversight. Such anomalies could never happen without a detached and independent federal judiciary that, since the days of John Marshall and the 1803 case of Marbury v. Madison, has had the final word on defining our constitutional rights.
The third incentive is the "cost-shifting" incentive. When Congress leaves the enforcement of rights to private litigation, it manages to have its cake and eat it too: to "do good things for constituents without paying for them." Enacting a law allowing individuals to sue their HMOs, for example, shifts the cost of policing HMOs to private individuals and frees the government from bearing the risk of failure - at least the financial risk. The independence of the courts also allows activists of whatever stripe to use individual cases as a way of enacting their own policy agendas without the need to engage in the political give and take that has always acted as a check upon extreme policy choices.
The bulk of Mr. Burke's book is an examination of how these incentives affected three legislative efforts at antilitigation reform: the fight against the Americans with Disabilities Act, the struggle over no-fault automobile insurance in California, and the creation of the vaccine injury compensation program. Along the way, Mr. Burke provides interesting insights into the role of the federal courts in the structure of our government, but unfortunately, he appears less interested in aiming for a wide audience than engaging in public policy debate on an academic level.
The book is also ultimately unsatisfying for a different reason.
Rather than advocating new solutions for the litigation explosion or casting fresh light on old ones, Mr. Burke favors the big-government solution what he refers to as the "replacement" remedy. "Replacement" remedies involve replacing litigation in a particular area with a bureacracy designed to address particular sorts of claims. The workers' compensation system is an example of how this solution operates.
Instead of requiring workers to sue in order to get relief for injuries suffered on the job a policy choice that in practice could overwhelm the courts the system of workers' compentrusts a bureaucracy to handle such claims. Mr. Burke holds out the example of the vaccine injury compensation program as a similar program, and one that has succeeded against difficult political odds.
It is true that, in certain limited cases, the bureaucratic remedy can succeed. It is also true, however, that the American polity would be loath to accept such a solution across the board and rightly so. As capricious and destructive as litigation can often be, the capriciousness of bureaucracies would undoubtedly be worse. Litigation is a poor way of making policy, but it at least provides a level of predictability and stability that bureaucracies lack subject as they are to the whims of civil servants and the political imperatives of succeeding administrations. It is likely that, on balance, the courts produce a more consistent result than any bureaucracy could achieve.
Mr. Burke holds out little hope that the "discouragement" remedies advocated by conservatives such as caps on punitive damages and other tort reforms to make litigation less lucrative for plaintiffs will ultimately be able to accomplish much, given the fact that incentives for litigiousness are so well-entrenched in American law. While he may be correct to some extent, it is unlikely that any single remedy (least of all the replacement remedy) would alone be likely to produce a significant improvement in the litigation-fostering policies he identifies.
After all, changing deep-seated incentives is what tort reform is all about. And, with conservative Republicans in control of Congress and the White House, we may soon be able to see for ourselves how much tort reform can actually accomplish.

Mark Miller is a lawyer at Baker Botts L.L.P. in Washington, D.C.

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