The Right to Have Rights

By James Kwak

There’s a story you hear often these days. The story is that America has too many lawsuits: too many lawyers, too many people filing frivolous suits, too many excessive damages awards by juries, and so on. This story is the reason for all the “litigation reform” in recent decades: the Private Securities Litigation Reform Act of 1995, Prison Litigation Reform Act of 1996, the state-level tort reform movement, Bell Atlantic v. TwomblyAshcroft v. Iqbal, and so on.

There are two problems with this story. The first is that it isn’t true. Take medical malpractice, for example—a frequent target of tort reform advocates. Only a tiny fraction—probably under 2%—of people harmed by negligent medical care actually file suit. Of suits that are filed, according to an after-the-fact review by unaffiliated doctors, 63% involved errors by doctors, and another 17% showed some evidence of error. According to the most basic economic theory of torts, we want people harmed by negligence to sue, because otherwise potential defendants (doctors, companies, etc.) will not have sufficient incentive to make the efficient level of investments in preventing injuries. In short, it is highly likely that we suffer from not enough lawsuits, not from too many lawsuits.

The second problem is more important, however. That problem is that while the costs of litigation are real—not just money but also defensive medicine, intimidation of startups by patent trolls, intimidation of the media by billionaires—the exclusive focus on costs overlooks the crucial role of litigation in our democracy. That is the focus of the new book In Praise of Litigation by Alexandra Lahav, a colleague of mine at the University of Connecticut School of Law. (The book is also where I got the statistics in the previous paragraph.)

Most people probably think it’s good that we have laws. As Lahav points out, there are three ways those laws actually get enforced: administrative agency regulation (e.g., the Office of the Comptroller of the Currency telling Wells Fargo not to foreclose on homeowners without proper documentation); lawsuits by administrative agencies (e.g., the OCC or the Department of Justice suing Wells for foreclosing on homeowners without proper documentation); and, when authorized, lawsuits by private parties (e.g., a class action by homeowners against Wells for foreclosing on them without proper documentation). Now, I didn’t choose those examples at random. We know that the federal regulatory agencies didn’t stop illegal foreclosures; then, after belatedly threatened to sue, they settled with the big banks for with largely illusory penalties; and the settlements insulated the banks from private liability for fraudulent foreclosures. (For the definitive word on that whole topic, see Chain of Title by David Dayen.) If you are skeptical about the ability or inclination of the federal government to enforce the law, you should be particularly protective of the ability to file a lawsuit on your own.

This is even more true if you care about individual rights. If you think that your rights have been violated, you can sue to enforce them. This is particularly important if your rights have been violated by a state or by the federal government, because in that case it’s unlikely that a government agency is going to take your side. The right to sue is arguably the most fundamental right that exists, because it is the right to have rights in the first place. For example, the Sixth Amendment (as interpreted in Gideon v. Wainwright) says that you have the right to an attorney if you are charged with a felony. But many states and localities refuse to pay for lawyers for the poor; see Dylan Walsh in The Atlantic, or the story of Jack Bailey on This American Life, for example. So you have to sue. A series of lawsuits by the Southern Center for Human Rights led to the creation of the Georgia public defender system, and the Southern Center continues to challenge judicial circuits that fail to provide sufficient representation for poor defendants.

But the right to sue is slowly being limited, not just by “litigation reform” acts but particularly by Supreme Court decisions that made it harder for plaintiffs to challenge secret wrongdoing by companies (Bell Atlantic), enhanced government officials’ immunity from private lawsuits (Iqbal), enforced mandatory arbitration clauses in standard form contracts (AT&T Mobility v. ConcepcionAmerican Express v. Italian Colors Restaurant), limited the jurisdictional reach of federal courts (J. McIntyre Mach. v. Nicastro), and prevented plaintiffs from obtaining injunctions against illegal government actions unless they could prove that they were likely to be harmed by those actions again in the future (City of Los Angeles v. Lyon). The common theme is increasing restrictions on the ability of ordinary people (or small businesses in some cases) to challenge illegal actions by large companies and governments. But no one ever said, “Your rights are being limited.” Instead, changes in legal procedure effectively increased the cost of enforcing those rights—in some cases to infinity.

The importance of lawsuits is something that conservatives have long understood. While conservatives are all in favor of restricting lawsuits against their investors (corporations, rich professionals other than lawyers)—which has the side benefit of taking money away from the trial lawyers, who tend to lean Democratic—litigation has been a central part of their strategy for decades. Think, for example, of the rewriting of the Second Amendment in District of Columbia v. Heller or the D.C. Circuit’s campaign against federal financial regulation (Business Roundtable v. SECMetLife v. FSOC).

In Praise of Litigation is only 149 pages (not including the copious notes that demonstrate Lahav’s command of the underlying material), and it’s simply written, because at the end of the day none of this is rocket science. We have three branches of government for a reason. The transformation of the judicial branch into a tool that is primarily accessible to the rich and the powerful is a serious problem in our democratic system of government. Sure, there are lawsuits that are only intended to harass people or extort settlements from companies that can’t afford millions of dollars in legal fees. But closing the door to the courthouse makes it harder both to enforce the law and to protect people’s rights.

7 thoughts on “The Right to Have Rights

  1. I’m torn by the need to sue. There is a part of me who if had another chance would become a person who sued to try to right a wrong done to say, society. The conundrum there is that their are simply too many areas which need consideration and the resistance of “further testing” opponents extend the important issues beyond the realm of infinity.

    Nixon is forced off the gold standard, and so he ups the war on drugs. Two wrongs which only compromise the future rights of citizens. The gold standard required close adherence to the laws of nature in order to be effective, which was rejected by the leaders of the day. The war on drugs then only complicates and compromises the legal system in an attempt to evade the laws of nature which are never fully understood or accepted. This leads to a spiraling out of control system which adds to the misery and cost of living of anyone captured inside this legal bubble. Then technology via a fiat money system actually gets ahead of itself and requires further litigation to curb abuses of the technology or regulations to try and slow it down, all financed with debt and the full faith and credit of future tax revenue.

    The pace of technological expansion needed to be slowed down years ago with a mechanism that did not exist, that would have reduced the need to litigate everything back to reality, or closer to it. Instead the human race itself is spiraling out of control, we have become a species of blowhards and thieves with no control mechanism hell bent on a war as the final end to its means. And it all accelerated with the creation of the jekyll fed, and institutional hyde, a gvt war on woman with no universal end in site.

  2. MANY years ago, Saint Augustine said: “In the absence of justice, what is sovereignty but organized robbery?” Some things hardly ever change!


    A good start would be for lawyers to get at the lawyers who were tasked with “creating a law free zone” – Guatanamo Bay prison.

    They first speculated what a “law free zone” would be like, and then used their “legal” skills to “create” it. Ironic that a woman is in charge of the project. Contortionism not just a skill for the dance pole….

  4. In certain instances and circumstances of damages to families, immigrant victims may have a right to suit (or perhaps even class action suit) over human rights.

    The Alien Tort Statute of 1789 (1st Congress) allows for lawsuits for violations of ‘law of nations’ with jurisdiction in United States courts
    against human rights abuses that include: slavery; Extra Judicial killings; torture; genocide; war crimes; and is a useful vehicle against
    Corporate misconduct.
    The early date of this statute is interesting but, since 1980, courts have interpreted this statute to allow foreign citizens
    to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States.

    Alien Tort Statute – Wikipedia
    The Alien Tort Statute (28 U.S.C. … However, few states enacted such a provision,
    and Congress subsequently included the ATS in the Judiciary Act of 1789.

  5. We are in a big bowl of philosophical crazy. Period.

    Lawyers creating a “law free zone” – Guantanamo Bay – is akin to the first-do-no-harm medical personnel finding new ways to ruin people’s good health.

    Both groups, combined, are at the root of “economism” where the new rivers of trillions of fiat dollars flow through the grasping hands of IT coders and hackers…

    What is the “value” of the human being in such techno-disrupto virtual reality systems?! Consumer?! And/or “liability”?!

    Liars. Thieves. Murderers. Government brought to you by The Shamans of Gizmology and their “sharing economy”.

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