Jewish World Review March 10, 2005 / 29 Adar I, 5765

Thomas Sowell

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High Noon for judges: Part III | People who complain about the frivolous lawsuits that have outraged some and ruined others financially need to connect the dots to the present Senate controversy over the confirmation of federal judges.

The attempt to replace activist judges with judges who follow the written law affects not only the basic democratic right of the voters to govern themselves through their elected representatives, but also whether our legal system becomes a danger to ordinary citizens and a bonanza to lawyers who turn it into a legalized extortion racket.

Once judges start disregarding the written law in favor of their own notions, ordinary citizens have no way of knowing in advance what decisions to expect from a given situation. We can read the written law but we cannot read judges' minds. This means that there is a large and growing gray area around our laws.

That large gray area is a happy hunting ground for lawyers, who can threaten individuals, businesses, and even government agencies with frivolous lawsuits — and get paid off to settle out of court, because nobody knows what is likely to happen in court.

Some people blame juries for outrageous verdicts and astronomical awards but many frivolous lawsuits would have been thrown out of court before they even reached a jury — except that appellate court rulings, all the way up to the Supreme Court, have left the trial judges themselves uncertain as to what is and is not legal.

So frivolous lawsuits often go to the jury, who are even less likely to have a clue and are more likely to be swayed by lawyers' rhetoric.

The law as written may draw a sharp line between what is legal and what is illegal, but when that law is "interpreted" by judicial activists, all kinds of new notions may be added. Certain things may be legal but only if they do not create an "undue burden" or if they meet "evolving standards."

This is called being "nuanced" and it is considered to be deep stuff. But try guessing what the law means with these vague provisos. What it really means in practice is uncertainty.

Imagine what would happen if highway signs, instead of saying "65 MPH" said "No Undue Speed" or "Prudent Driving." The lawsuits over traffic laws alone would clog our courts to a standstill.

As bad as uncertainty is to people being sued, it can be worth millions of dollars to a slick lawyer who knows how to concoct frivolous lawsuits and extort money for settling out of court. Such lawyers head for places where there are big bucks — "deep pockets," as they are called.

Among the reasons why this affects ordinary people is that many deep pockets get their money from a lot of much shallower pockets. Many of these shallower pockets belong to taxpayers who get stuck with the bill when government agencies get sued and pay off the legal sharks to go away.

When your insurance company has to buy its way out of a frivolous lawsuit, guess whose premiums go up. When developers who are trying to build homes or apartment buildings get sued at every turn by environmental extremists, guess what that does to the rent of apartments and mortgage payments for those who buy houses.

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More than money is lost when judges muddy the waters with their own notions. Judicial activists have imposed "due process" rules on schools which have made it such a legal ordeal to get rid of disruptive or even violent students that it can be virtually impossible to impose the kind of discipline needed for learning.

Similar judicial attempts to micro-manage other institutions have made it hard to maintain order in prisons or to keep "street people" from being a constant nuisance or danger to ordinary citizens on the streets or children in the parks.

Some people try to justify judicial activism by claiming that there have been issues on which the public was wrong and the judges were right. But nothing is easier than finding issues on which any given set of human beings have been wrong — including judges.

There are high stakes for everyone in the upcoming Senate battle over judicial nominees who are said to be "out of the mainstream" because they don't support judicial activism. The mainstream of judicial activism is itself the real problem.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.) To comment please click here.


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© 2005, Creators Syndicate