The Sue-S-of-A

I’m on a mailing list where, earlier today, a discussion arose about patents, the lawsuits they can spawn, and whether the great early American inventors had to contend with anything like today’s legal environment. One participant made an offhanded comment about “200 years ago, before society became so litigious,” and so I emerged from the woodwork to write the following.

Oh yay, someone triggered one of my favorite rants.

Though it’s common to hear people say so, it’s not true that our society is qualitatively more litigious now than it was in some halcyon past. Americans have been suing the pants off each other since even before we were Americans. A notable feature of colonial America was the litigiousness of its people compared to their British counterparts. (Indeed, compared to all the rest of Christendom.) And though it’s easy reflexively to decry this aspect of American society, I would like to persuade you that this is actually the very root, or at least a reflection, of American greatness.

What does it mean for a citizenry to be litigious? Does it mean that they have more grievances against one another than elsewhere? Almost certainly not; neighbors have had the same complaints about each other throughout recorded history. Does it mean they’re more vindictive toward one another? More spiteful?

No. It means that when disputes arise, even the lowliest commoner has such faith in the law and such equal access to it that he readily turns to the courts for redress. Not to individual reprisal. Not to generational vendettas. Not to local strongmen. The law. In America the courts are and always have been accessible to everyone who wishes to bring business before them. This was not true in 18th-century England and is still more true in America than in most other places. So when Americans disagree and can’t settle the difference themselves, they sue each other, and they trust the justice that’s dispensed, and they abide by it, and it’s the very height of civilization to do so.

Obviously it’s better when people can work things out themselves, but they can’t always. What better next step is there (when the issue is not frivolous) than to sue? Why must there be such a strong negative connotation attached to it? It’s your right to sue that keeps honest those people who might otherwise have inordinate power over you: your doctor, your accountant, the makers of your car, of your food, the executives of companies in which you own shares, etc.

We’ve been convinced to equate the right to sue with frivolous, wasteful lawsuits that line the pockets of greedy litigators. It’s only because of that association that we think nothing of routinely waiving that right. It is now ubiquitous for corporations to insist on binding-arbitration clauses in contracts with individuals who are all but powerless to negotiate them away. This is as un-American a practice as I can imagine and I urge everyone to agitate against it.

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