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It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me
I ought to do. Edmund Burke
The more corrupt the republic, the more numerous the laws. ~Tacitus, Annals
The greater the number of laws and enactments, the more thieves and robbers there will
be. ~Lao-tzu
Americans have the right to a judicial system they can trust. . . . Many judges disregard
the safety, values, and freedom of law-abiding citizens. . . they make up laws [and] invent
new rights. . . . 2000 Republican Platform.
It has been a common theme to target lawyers and the judiciary as major culprits in the loss
of freedom and the growth of government. It is claimed that judicial activists have made up
rights where none existed and created new laws. There is supposedly a hidden "litigation tax"
in the cost of goods and services because of unscrupulous lawyers filing frivolous lawsuits
and toady activist judges supporting their claims.
In defense of lawyers, the judiciary and the judicial system a few observations from a
conservative, Republican trial lawyer in Greene County, Missouri. But first a caveat- this
defense is not complete or categorical. There is much to criticize with lawyer conduct and
the judiciary, just as there is in other professions. Moreover, certain lawyer associations when
they venture outside issues of the judiciary become mere extensions of political parties and
lose the support of many lawyers. However, it is hoped that these observations will provoke
a thoughtful discussion and re-consideration of the cause of our present discontents- the size
and scope of government- and what we should conserve, or change. That being said please
consider the following:
The judicial system is consciously a conservative institution. In applying and interpreting the
law it utilizes the doctrine of stare decisis which means "to stand by and adhere to decisions
and not disturb what is settled." Woe to the lawyer trying to convince a judge of an argument
without a legal precedent close at hand. The common law is resistant to change. In
interpreting constitutional provisions and statutes the rules of construction dictate a narrow
meaning to these enactments. When cases are decided it is usually on the narrowest possible
basis. In cases on appeal if an appropriate record has not been made in the court below
nothing is preserved for review by an appellate court.
In contrast, both the executive and legislative powers tend to be "activist". Legislative and
executive officials respond to the wants and whims of an electorate, or lose their jobs.
Presidents issue hundreds of "executive orders". Congress has ballooned the federal register
which memorializes legislative and agency activity to 80,000 pages for 2008. Congressmen
are elected many times to undo what their immediate predecessor has done. Today’s
politicians rarely campaign on a platform "to stand by and adhere" to the past.
The cause of the increase in litigation over the last seventy-five years does not primarily lie
with the judiciary, or the lawyers which practice in the courts. With limited exceptions judges
do not create new entitlements or new remedies. In contrast, Congress has been enacting new
laws every year with a fury. At least eight new cabinet positions, with supporting laws and
bureaucracy, have been created since l953. We have seen historic civil rights statutes enacted,
environmental laws promulgated, new protections for disabled persons, and expansions of
medical care benefits- under both Democratic and Republican presidents and Congresses.
Congress has enacted statutes that allow citizens to have standing to enforce statutes and
administrative regulations in court by the use of "citizen lawsuits". These lawsuits have
invited public interest groups, both on the left and the right, to litigate public issues in court,
as opposed to seeking redress through the legislative process.
Moreover, Congress routinely makes or attempts to make laws in derogation of historic
constitutional concerns. Even now, the Republican caucus in Congress is proposing "national
health care courts" as part of its health care proposal as a means of solving the alleged
malpractice crisis and cutting medical costs. What about state’s rights and the federal/state
system.? Litigation concerning negligence claims, whether caused by a doctor or automobile
driver, is historically, and almost exclusively, a state concern, not a federal one. "National
health care courts" sounds like something which leapt forth from Robespierre’s fervid
imagination during the heights of the Reign of Terror. Would a Greene County resident
prefer to have his day in Court in front of a Greene County judge and jury, or go to a
"National Health Care Court", wherever that might be. Republicans- in your desire to address
health care reform or medical malpractice concerns don’t abandon your historic commitment
to the Constitution and federalism.
At a state and local level the increase in litigation is also caused more by legislative
enactments and not court made law. Contrary to what many believe, injury lawsuits, class
actions, civil rights and malpractice cases take up only a small part of judicial time. For
example, the enactment of laws to protect women and children from stalking and violence,
or to provide separate counsel to children at risk in domestic disputes, as well as new divorce
laws including "no fault divorce" and complex laws for determining division of marital
property, child custody and support have accounted for thousands of new cases. In Greene
County, Missouri domestic litigation takes up huge amounts of judicial and clerical time.
Similarly, in the last few years the Missouri legislature relaxed traditional rules of evidence
so hospitals could obtain judgments for unpaid bills based on hearsay affidavits, a privilege
not generally accorded to other individual civil litigants and expanded civil liability for the
cost of medical care. Partly as a result thereof, hospital litigation has exploded. For example,
in Greene County, Missouri the two mega hospitals, Cox and St. Johns, supposedly nonprofit
charitable institutions, are by far the most litigious claimants in the judicial system with
thousands of cases pending, almost all collection suits against individuals who are unable to
pay in full for services rendered. The volume of this litigation alone could justify a permanent
associate judge court position to try hospital lawsuits against individuals.
And, what comes with laws which confer benefits or provide remedies, are the mechanisms
to enforce them— courts, judges, lawyers and all the rest. What does one do when a social
security benefit is wrongly denied, or private property is taken for a non-public purpose. We
go to lawyers, judges and courts for redress, rather than private armies.
The cynic may argue that Congress and legislatures tend to be dominated by lawyers who
profit by the laws enacted hence the growth in government. But lawyers as a profession
dominating legislative bodies has always been true, whether it be the members of the
constitutional convention which created a limited minimalist government, or for 140 years
thereafter when government incursions into historically private matters was substantially less,
until the advent of the New Deal. In truth, lawyers and the judiciary don’t grow government.
So if you don’t like the argument your lawyer is making- you can fire him. If you don’t like
the laws your legislators are making you can fire them too. As Cassius opines, the fault is
not in our stars, dear Brutus, but in ourselves.
Thomas H. Hearne is an attorney in Springfield, Missouri. His major area of practice is
insurance law. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it ".
