THE LITIGIOUS SOCIETY by Jethro K. Lieberman


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One of two new books on litigiousness as a social phenomenon: the drier, more sober one. While Marlene Adler Marks concerns herself with the psychology of litigation (see The Suing of America, below), Business Week legal editor Lieberman examines the legal and social consequences of the expanding ""right of redress."" In broad terms, Lieberman views the course of contemporary law as a shift of emphasis from contract to concepts of fiduciary duty, and an attempt to infuse an increasing number and variety of relationships with a fiduciary character. Since fiduciary rules are often incapable of being translated into operationally precise language, legal standards (which speak in terms of what is ""reasonable"" or ""unconscionable"") rather than rules become the norm, and ""the resulting imprecision prompts litigation."" Concurrently, Lieberman argues, the style of litigation is changing from the traditional lawsuit between two parties, where the remedy sought depends on the right claimed, to an emerging model in which a class of plaintiffs may seek affirmative judicial intervention in shaping social policy. In the products-liability field, Liberman traces the expansion of the duty of care from 19th-century laissez faire philosophy to present-day strict liability theories and examines the consequences: an increase in suits, higher insurance premiums for manufacturers, attempted legislative undercutting of court decisions, and (perhaps) a decline in technological innovation. The expanding right of redress can be seen even more clearly in environmental litigation, designed to ""prod the courts into fashioning an environmental ethic,"" and in right-to-treatment cases: where the courts have undertaken to set minimum standards of expenditure and staffing for state mental hospitals. Like it or not, says Lieberman, there may be no alternative to expansion of the courts' role--""the very involvement of courts in the social policy process is testament to the lack of involvement of others""--and at least the courts' activities may awaken the political branches of government to their responsibilities. Lieberman's discussion is far from ground-breaking, but he restates the issues thoughtfully.

Pub Date: March 27th, 1981
Publisher: Basic Books