Access to the Courts

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When injustice arises in America, people turn to the courts.

The courts protect ideas and inventions, by enforcing copyrights and patents. They protect property and incorporeal rights by enforcing contracts and business transactions. They protect entrepreneurs and owners of small businesses by enforcing laws against monopolies and unfair competition. And they protect the consumer by enforcing warranties, whether express or implied.

Society comes to the courts to have those who pose a danger to the public incarcerated, while the wrongly accused rely on courts to protect life, liberty and property by due process of law. Regulations that protect the environment are effected through the court system, while corporations go to the courts to challenge regulations that are overly burdensome or unfair. It is the courts which ensure basic liberties, like freedom of speech and equal protection, and it is the courts which see that rights of privacy and protection from governmental intrusion are enforced.

The courts serve as the instrument by which the government protects society from individuals and corporations, and at the same time by which individuals and corporations secure protection from the government itself. The Constitution does not exist without the courts to defend and to define it.

Without the courts to enforce them, laws are just words on a page.

When I graduated from law school in 1994, Newt Gingrich’s Contract with America was in full swing, and claims of a “litigation explosion” seemed to be everywhere. Yet, when I wrote America and the Law, (largely in response to the Contract), civil filings had decreased a total of 6 percent over the preceding three years; and while there had been a dramatic increase in domestic disputes, suits against asbestos manufacturers, and employment discrimination cases, there were no more civil lawsuits per capita then than there were in 1959.

Of these, tort cases accounted for less than 2 percent of the total caseload, and only 6 percent of all civil claims. Around three-fourths of cases were settled by the parties, while 23 percent were dismissed by the court completely, and only 3 percent were going to trial.

A study conducted by Tillinghast Towers Perrin, (whose surveys had traditionally been cited by manufacturers and other defense interests), showed that more than 50 percent of all pain, suffering and economic loss goes uncompensated, and that the gross annual costs of tort suits had not increased in proportion to the general growth of the economy since 1985. Robert Sturgis, who conducted the study, concluded that “both the propensity to sue and the willingness of defendants to settle questionable liability claims have actually declined.”

From the time of Magna Carta, the laws of England embodied the principle that all of the King’s subjects, “for injury done to him by any other subject, may take his remedy by the course of law, and have justice and a right for the injury done him, freely without sale, fully and without any denial, and speedily without delay.”

In our country, the First Amendment provides that Congress shall make no law abridging the right of the people “to petition the Government for a redress of grievances” and the constitutions of several states, including Louisiana, have specific provisions that expressly ensure the right of open access to the courts.

The United States Supreme Court has recognized that “the right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.”

“Perhaps no characteristic of an organized and cohesive society,” wrote Justice Harlan, “is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. … Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just.”

When someone believes that he or she has been wronged at the hands of another, the natural reaction is anger. But if society’s members spend all of their time engaged in acts of vengeance and retribution, they will have neither the time nor the motivation to acquire nor to create knowledge or things.

“If the members of our society do not believe that the wrongs which they may suffer are righted by our judicial process,” observed Justice Waltzer in Jones v. City of New Orleans, “then they take revenge into their own hands in their own time, place, and manner, and a functioning society ceases to exist.” (Note, for example, what recently occurred in the town of Ferguson and elsewhere when faith in the judicial system was lost.)

At the same time, the court system demands relatively little of our collective resources. The federal courts consumed about one-fifth of 1 percent of the federal government’s budget in 2013, while during that same year in Louisiana, only 0.58 percent of the general fund was appropriated to the judiciary. This includes the cost of operations of the state Supreme Court, five appellate courts, salaries of state court judges, a portion of salaries for parish and city court judges and compensation of retired and ad hoc judges.

Some special interest groups complain that America is the most litigious society in the world. Yet many of these same groups and their financial supporters do not hesitate to use the courts to advance their own interests. While pushing for laws that would close the courthouse doors to everyday Americans fighting to hold them accountable for their wrongs.

The courts are the safeguard of our freedoms. The courts are the safeguard of democracy. The courts protect our thoughts and our beliefs, our ideas and our inventions, our properties and our lives.

Our tort system is not “expensive” – particularly in light of the unfortunate number of torts. And think of all of the billions of dollars that are saved each year in personal and commercial injuries that the tort system surely prevents and deters.

“We should be thinking of ways to reduce the number of torts” observes Professor Able, “not the number of recoveries.”

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