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What Ever Happened to Judgment?

February 25, 2010

Back in the 1990s, Phillip K. Howard wrote a relatively small book called The Death of Common Sense. The book is a cautionary tale describing the cause and effect of the regulations we deal with as we go though our daily activities.  It was very successful, as far as this type of book goes, but unfortunately, we (the United States of America) did not heed his warnings.  In truth, we pressed the gas pedal of regulation down hard, to the point of stifling every aspect of our daily lives.

Reading the book left me with one huge question then, and it still remains today – what has happened to our judgment?  As a lawyer, Mr. Howard is well aware of the negative aspects regarding regulation and the legal system.  That is not to say he wants regulation removed, to the contrary, he describes a system of regulation that allows for common sense to prevail.  That is the point, not every issue is equal in basis, nor should the rules regarding every issue be “one size fits all.”  Common sense judgment must be applied.

Today, life revolves around lawsuits, we are either suing, being sued, looking to sue or fear being sued.  It drives our lives in ways we no longer even see.  Want to make a snazzy new bucket everyone will want to buy – not without a warning label that a small child might drown in it.  Let’s be honest, it would not be much of a bucket if a small child could not.  A logical question might be what is wrong with taking the extra precaution of a warning label?  The problem is one of familiarity, warning labels are so common we no longer see them; they no longer have meaning.  Why does the bucket label exist in the first place?  Fear of a lawsuit.  Heaven forbid a child drowns, but if it happens, your new bucket company is safe, you warned them.  Still, that warning does not prevent the lawsuit as much as give an affirmative defense and limit liability.

Of course, now the federal government now requires such a label.  Rather than work on trivial matters such as our economy or health care, they spend their time on regulations that allow them to claim action when in reality, it does nothing to improve safety.  For example, ten times as many children drown in bathtubs as buckets each year but the tubs do not carry the warning.  Maybe the plumbing industry has better lobbyists.

As silly as the example is, the bucket warnings are real.  I am sure businesses do not mind the warnings for fear of a lawsuit making it to trial, not an individual’s safety.  People have lost faith that a judge will look at a stupid claim and throw it out.  We cannot fully blame judges; in addition to things like warning labels, our various legislative bodies have passed laws that restrict a judge’s ability to judge with the result being they are more a referee than true jurist, especially when a jury is involved.  In the end, the more we define how a judge must rule, the less judgment takes place.  The problem with such legislation it is the assumption that all situations are equal, that every claim is at least valid and should be heard.

If judges cannot use common sense, individuals and businesses are left to try to cover every possible out come, however remote.  As Mr. Howard points out “society is boiled down to our least common denominator.”  There is a difference between driving 100MPH to get to the ballgame on time and doing so to get your child to the hospital.  A judge should not have a law that prevents seeing each case with its particular circumstances and applying sound judgment.  In both cases, the individuals are guilty of the same offence but intent does matter.  Judges must be allowed to take that into consideration.  A party of a lawsuit can appeal a decision they feel is wrong.  We, as society must accept their verdict even if we do not agree with it.  They heard the case, weighed the facts, took situations into account, we did not.

We need to return common sense to our legal system.  We need fewer dictatorial laws and ones that are more reflective.  Laws that allow judges to do their job; laws that allow the public to have faith in the system, no matter what side they are on, not feel as though they’ve been run over by it.

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