"The Suing of America" and "The Litigious Society" both start with the public perception that people are going to court more often. The resemblance ends there.
"The Suing of America," by Marlene Adler Marks, a journalist based in Los Angeles, is the literary equivalent of the record albums you see advertised with late movies on television; call it "Litigants' Greatest Hits." Its analysis makes Psychology Today look profound. Its prose recalls the personality columns of newsmagazines -- but goes on for 230 pages.
Marks has two points. The first is that litigants go to court because of human motives. To make sure you get that point, and to allow her to put her news clips in order, Marks titles her chapters accordingly: "Dreams and Promises," "Protest," "Grief" and so on. Marks' second point is that litigation reflects our world and us. En route to these revelations, Marks drops the names of Dred Scott, Anne Frank, Dustin Hoffman, Freddie Prinze and a cast of thousands.
By contrast, "The Litigious Society," by Jethro K. Lieberman, merits attention. Lieberman, a lawyer and legal affairs edition of Business Week, argues that critics of litigiousness risk cutting off rights of redress that we value. When even the chief justice of the United States decries court congestion, that argument urgently needs to be presented.
Lieberman backs his argument with substance and discrimination. He also writes for a general audience without condescension. Few books on law achieve his careful discipline and accessibility.
Lieberman questions whether litigation has increased as much as its recent denunciations would suggest. He points out that "the rate of civil filings to the population reained nearly constant from 1960 to at least the mid-1970s." He acknowledges, though, that caseloads in the federal courts -- the most visible judicial system in the United States -- have soared.
That increase stems in part from congressional enactment of new statutes, which intervene in private affairs to an unprecedented degree and impose duties of an unprecedented variety. Lieberman makes an analogous point about courts. They too, he says, are imposing greater public expectations on private parties; they have shifted increasingly from expecting parties to deal with each other at arm's length to requiring them to watch out for the interest of others.
Nowhere is that shift more evident than in the law of product liability. Courts are requiring manufacturers not merely to build their products properly, but to anticipate how consumers may use them and to warn of conceivable dangers; million and multimillion dollar verdicts from juries have put court doctrines in the headlines. Manufactuers claim the danger of these verdicts discourages technological innovation, hikes insurance rates and product costs, and drives small companies out of business.
Lieberman sorts through those claims carefully. He shows that, though large verdicts attract publicity, they are relatively rare. In fact, victims of minor injuries typically receive larger settlements than their injuries warrant; victims of major injuries are rarely fully compensated.
The relation of insurance rates to potential liability is similarly problematic. Insurers "had no sound basis" for raising premiums as they have, says Lieberman. Insurance companies are also villains in his treatment of medical malpractice. Doctors have come to blame lawyers and judges for the soaring costs of insuring against malpractice. The insurance industry did its best to encourage that reaction. "In fact," Lieberman declares, "the swelling tide of lawsuits seems to have served as an excuse rather than a cause."
Another of Lieberman's focal points, environmental litigation, is a product of congressional experiment. Unable to agree on a national environmental policy, and yet recognizing the need for one, Congress passed the buck. It setout a framework for procedure that put the onus on administrative agencies and the courts. The delays to industrial plans that have resulted, Lieberman contends, are not the fault of litigation; they carry out the one "policy Congress did lay down: to stop and think about the consequences of action before it is undertaken."
A part of the cry against litigation and the courts has arisen not from increased numbers of cases or extensions of liability, but from the remedies courts impose. Judicial management of prisons or mental institutions, reorganization of legislative districts, and orders to bus children between schools are prominent examples. Lieberman is more ambivalent here than elsewhere in defending current practices; he sees values with which he sympathizes -- i.e., the importance of neighborhood schools -- being lost to absolutist remedies. But he reminds us of the history and suffering that caused courts in each instance to intervene, and raises the hope that their intervention will stimulate responses which allow them to withdraw.
Those responses, Lieberman makes clear, should include action by our legislatures: not only to reduce the need for drastic judicial remedies, or to take responsibility for clear statutory instructions, but to answer the needs that now find redress only in our courts. So long as institutions are not always responsive, he concludes, "litigation will remain the hallmark of a free and just society."