Here’s one thing that has puzzled me about the “settlement or
extortion?” thread. Many critics of tort law and employment law – largely
conservatives and libertarians – have long argued that our legal system often
leads to unmeritorious claims being settled to avoid risk and to save
litigation costs. If Walter Olson (author of Litigation Explosion, which
criticized American tort law, and Excuse Factory, which criticized American
employment law) were here, he’d probably say something like this:
1. The Title VII reasonable accommodation requirement embodies a
deliberately vague “undue hardship” / “reasonable accommodation” standard for
liability. (Justice Scalia might cheer him on, making his “rule of law as the
law of rules” argument.) This is an open invitation to disagreement among the
parties about what the law requires, and to unpredictable jury decisionmaking.
2. Our legal system has overgenerous discovery provisions, which
make litigation more expensive.
3. Courts have interpreted Title VII to provide asymmetrical
fee-shifting, so that losing employers must pay prevailing plaintiffs’ attorney
fees, but losing plaintiffs almost never have to pay the prevailing employers’
attorney fees. Compared to either the system the reformers often prefer, which
is loser pays, or to our normal American Rule of no fee-shifting, this
asymmetrical system creates a further incentive for plaintiffs to bring weak
claims, and for employers to settle such claims.
We’ve been shouting about this for decades, Olson might say, but
the legal establishment – and especially liberals – have largely condemned and
rejected our arguments. What is it about this particular case that triggers
people not just to complain about the plaintiff’s position, but to call his and
his lawyers’ actions “extortion”? And unless we come up with some special rule
that’s unfavorable to people with objections to abortion, shouldn’t we think
more broadly about whether our system is broken, and about whether we should
cut back on the scope of liability, the vagueness of liability, the procedures
that make litigation costly, and the incentives to bring weak claims?
Eugene
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