Note: if you read this Sunday afternoon, I added a little to the end.
This weekend I’m going to shift gears a bit and continue my series on the 50 year plan. In this installment it’s my views on where the justice system needs to shift focus to in the next five decades.
In our justice system there are two separate types of cases – those on the criminal side and those on the civil side. There’s problems with each but both have led to overcrowded court dockets.
Unfortunately, our legislative bodies continue to enact more and more regulations and ordinances, so the chances of you running afoul of a law increase. As an example, effective June 1st a person may not catch oysters for sale in Maryland without certifying they received information from the state about where oysters may not be harvested. So if you forget to send in this piece of paper you’re in violation of the revised law. And obviously with more laws come more court cases.
I think the best way to solve this issue is to take a series of steps involving how we write laws and what we regulate. First of all, let’s stop passing laws and regulations at the federal level mandating the states write some particular law or regulation on their part, otherwise they lose federal funding. The Tenth Amendment is there for a reason, so stop violating it.
The next step is for the states to junk many of the laws that I consider “nanny state” laws. These cover areas that properly fall under personal responsibility. Is it a crime that one doesn’t wear a seat belt while driving? I don’t think so. I’ll be the first to admit I do buckle up but to me that’s common sense and I’d do it even if the law didn’t say I had to. On a more controversial note, I’m not sure that many of our drug laws are necessary. Having a couple ounces of marijuana or a few pot plants for personal use really shouldn’t be a crime (however, the sale of it or driving under its influence should remain in the criminal realm.) In this case, I’ve not tried marijuana myself but have been in situations where it was smoked and offered to me. (That would be pretty much any concert I attended in my formative years, the 1980’s.) So I guess I’m the anti-Clinton in that I didn’t try it but I did inhale the second-hand smoke. To me growing marijuana for personal use equates with home brewing or winemaking, both of which are legal in most locales.
All in all, my libertarian side is most pronounced when I discuss these sorts of issues. While I do agree that there should be guard rails, it should be the force of society that shames people into compliance rather than the force of law fattening government coffers and crowding our jails and prisons with drug offenders who were (in many cases) otherwise nonviolent.
The other side of the legal system coin is the civil side. If you watch TV, drive down the road, or even look at your phone book, chances are sooner or later you’ll see some lawyer advertising his or her services because you’ll be screwed by the insurance company after your auto accident if you don’t hire them, or else you should get what’s “yours” because you took Vioxx, was exposed to asbestos many years ago, or some other common real or imagined affliction (in other words, the class-action lawsuit.) And what has all this legal action gotten us? Mostly it’s resulted in some extremely rich trial lawyers (think John Edwards or Orioles owner Peter Angelos) and some extremely stupid warning labels placed on products because some idiot didn’t use any common sense. However, he or she probably won life’s lottery via class action suit and made a trial lawyer quite wealthy in the process.
My thought is that just one measure is necessary to rid the system of a whole lot of junk lawsuits. It’s called “loser pays.” And while the article I cite is now almost 12 years old, the idea is just as valid and probably more pressing. Of course, trial lawyers hate the idea, and so do the Democrats. They whine that “if you do ‘loser pays’, it will discourage the average citizen from filing a lawsuit.” Not if their case has merit.
Further, in many civil cases lawsuits get settled long before they get to the courtroom because a company decides that it’s better just to settle and make the problem go away than risk the prospect of John Edwards “channeling” an unborn child who ended up with cerebral palsy and swaying a jury with emotion rather than the facts behind the case. That doesn’t necessarily go away with “loser pays” but trial lawyers will have to build up their cases better. (Hopefully the juries of tomorrow will be better in critical thinking thanks to my ideas for education reform too.)
One idea that I’ve heard regarding trial by jury that I don’t care much for is the idea of paid professional jurors. Back in the day, people seemed to take jury duty more seriously than they do now – now it’s something to be avoided. You end up taking a day (or more) off work for the pittance that you’re paid, which is essentially paid to make up for the parking fee you’re charged to keep your car at the courthouse all day.
So somebody came up with an idea about juror as occupation. This writer is among those arguing for it. But I have to disagree because what you’re doing in this case would be appointing more unelected judges – a panel of 12 professional arbitrators, if you will. Instead, being called for jury duty needs to be more mandatory (fewer excuses for avoidance) but also more lucrative, with at least a minimum wage placed on it. With fewer trials clogging the courts, the need for a jury pool is lessened and the savings could be placed on making jury duty less of a financial hit.
Our system of justice has worked pretty well for over 200 years. But the courtroom should not be a place where a trial lawyer strikes gold by playing to the emotions of twelve jurors in order to convince them that, hey, this company won’t miss the $30 million I’m seeking to have awarded to my client (never mind I’ll get half); nor should it be the place where one who is growing marijuana solely for personal use end up risking a jail term.
You know, I reread this after I posted and it occurred to me that I had one more point. Quite simply, I think regulations and many laws should have a sunset date. As one example, the PATRIOT Act was set up originally to expire in four years; however, many thought that it should become permanent. But where a lessening of civil rights is concerned, any measure curtailing them should be temporary. I think ten years is a good timeframe – first, it allows a turned over legislative body to revisit the law and its consequences; and secondly, if they’re looking at existing laws it’s less likely they’ll think of new ones!
So with that addition, there’s another piece of my 50 year plan. I have four more installments I’m going to do and then a summary. All of these will be written over the next month or two because I want to wrap it up in time to do a Presidential candidate focus featuring these particular issues near and dear to my heart.
I got to this place from Crablaw… and I think Bruce’s recommendation was a good one. Most of what you say so far seems cogent, and I say this as a liberal who has a few libertarian leanings but is still on the economic left.
The loser pays systems is successfully used in other common law legal systems – at least, they have fewer frivolous lawsuits, though the causal connection may be spurious. In many contexts, it actually increases the average citizen’s access to legal representation, since both the plaintiff and the lawyer are guaranteed to be reimbursed for legal expenses if they win.
Seatbelt laws don’t even fulfill their intended purpose. John Adams has demonstrated how they simply cause drivers to drive faster and more recklessly, with increased pedestrian deaths offsetting any reduction in car accident deaths.