Dan Quayle Is Unlikely Law Reformer

TRB

August 22, 1991|By TRB

WASHINGTON — Washington. -- It's possible that when Dan Quayle was in law school two decades ago and learned about the so-called ''American rule'' -- that each side of a lawsuit bear its own costs, no matter who wins -- it struck him as absurd and unfair.

And it's possible that he thought, ''By golly, if I should ever find myself Vice President of the United States and chairman of the President's Council on Competitiveness, I'm going to do something about it!''

Possible, but not likely, is it? Not just because he's Dan Quayle. And not just because Mr. Quayle showed no passion for legal reform from the day he entered the Indiana bar in 1974 until his controversial speech in front of the American Bar Association Aug. 13.

We no longer expect our political leaders to derive their ''issues'' from a life's experience. The political process has become far too scientific. That's what aides are for. Imagining that Dan Quayle embraced legal reform out of sincere reflection is like imagining that Michael Jordan independently discovered the merits of Gatorade.

That doesn't mean that Gatorade, or legal reform, is a bad thing. Mr. Quayle's proposals for curbing the litigation explosion are generally good things.

In certain cases, Mr. Quayle would replace the ''American rule'' with the ''English rule,'' that the loser pay the costs for both sides. Not only would this curb lawsuits that are frivolous or extortionate. It would actually encourage lawsuits that are clearly meritorious.

''Punitive damages'' are money awarded to a plaintiff, beyond compensation for actual harm, in order to punish a wrongdoer. Because there are no clear standards, punitive damages have ** turned into a sweepstakes. Juries award millions to a few, nothing to others.

Mr. Quayle proposes a cap on punitive damages, letting the judge rather than the jury set the amount, and requiring clear proof of wrongdoing.

Mr. Quayle also proposes limits on ''discovery'' -- the pre-trial phase of litigation in which each side peppers the other with interrogations and requests for evidence. The cost, time, and invasion of privacy make ''discovery'' a bludgeon that can be used by defendants and plaintiffs to pervert justice.

Mr. Quayle proposes limits on ''expert testimony'' -- a plaintiff couldn't hire an ''expert'' to testify that Gatorade gives you cancer unless that reflected a widespread view among similar experts -- and steps to encourage settlement of disputes without trial.

So what stands in the way of sensible changes like these? The self-interest of the legal profession, the inherent conservatism of the bar, the misguided objections of folks like Ralph Nader who believe that nature granted lawyers unique powers to be used for evil or good.

And also some Republican shibboleths Dan Quayle may not be so eager to discard. When you pick your ''issues'' at the salad bar, they may not always go together.

First, there's federalism. Mr. Quayle correctly sees the stifling effect and cost of litigation as a national problem. Yet tort law is traditionally a state affair, and Republicans are known for their concern that the federal bully not trample the garden of states' rights. Even federal courts generally follow state law in their respective locations.

xTC The Competitiveness Council timorously proposes ''model statutes'' on matters such as punitive damages, which it hopes the states will adopt. But the Bush administration also has endorsed federal legislation for tort reform.

The traditional Republican hostility to regulation is another barrier. As a way of setting standards for corporate behavior -- on the environment, consumer health, worker safety, whatever -- it is both fairer and more efficient for one agency to make the rules and set the penalties once and for all than for judges and juries to litigate the question again and again, coming up with a different answer each time. But it is not unusual for conservatives to oppose some regulation on the grounds that the matter ought to be left to ''the common law.''

Finally, there is the callous Republican attitude toward the social safety net. Other advanced societies, it's true, are not as obsessed as ours is with the various individual risks of modern life, and do not stage orgies of litigation whenever something goes wrong.

But these other societies are generally far more protective of their citizens against the risks of life in general: of getting sick, of losing a job, of just being one of life's losers. Societies that do protect losers in general are in a better position to say ''them's the breaks'' when something specific goes wrong.

The trouble with litigation as a method of social justice is its randomness. It only compensates for certain kinds of misfortune, compensates erratically (sometimes inadequate, sometimes over-generous) even for those, and eats up most of the proceeds while redistributing them. But curbing litigation does not solve the problem of social justice. Perhaps that could be Dan Quayle's next project.

TRB is a column in The New Republic by Michael Kinsley.

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