Monday, January 26, 2009

Don't Overhaul the Tort System

In an op-ed in the Wall Street Journal, Philip Howard, author of the book "Life Without Lawyers" writes: "Calling for a 'new era of responsibility' in his inaugural address, President Barack Obama reminded us that there are no limits to 'what free men and women can achieve.'" However, Howard says, "Americans don't feel free to reach inside themselves and make a difference" because "the growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices." He says, "We have become a culture of rule followers, trained to frame every solution in terms of existing law or possible legal risk." Howard says that "riving the can-do spirit that made America great requires a legal overhaul of historic dimension" and "we must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices."

While there may be some areas that are over-regulated, let's not lose sight of the fact that the basic principles underlying the tort system have been in place since the beginning of our legal system, namely the basic negligence standard (reasonable care under the circumstances) and the right to trial by jury, among others. Most people understand that acting reasonably is all that is expected of them, and are able to act accordingly.

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