While we’re grappling with exporting our constitutional principles to those less fortunate in the world, it is important to note that some of them are under siege here at home. In an important book, The Case Against Lawyers, former Texas judge and current host of Court TV Catherine Crier makes a bold statement about the current condition of the rule of law in this country: “Our great cornerstone of democracy, the rule of law, has become a source of power and influence, not liberty and justice. I resent the insidious manipulations of those entrusted with such authority and, even more, I despise our deliberate ignorance and passive acceptance of those shackles on the American spirit.” Ben Stein lists a dozen suggestions on how we can completely ruin American competitiveness and innovation, among which prominently is “to encourage the making of laws by trial lawyers and sympathetic judges, especially through class actions”. I would add to these observations that these tendencies will also destroy American exceptionalism, undermine its world leadership and its moral authority, and eliminate it as a beacon of hope for the world. Thankfully, there are statesmen on the job. Common Good is a national bipartisan initiative launched in 2002 to overhaul America’s lawsuit culture, return us to the essential idea of the law as defining the boundaries of legal action, and depart from the concept of using the law as a tool for various theoretical “value” judgments without evidentiary proof. Another group that has done yeoman work in restoring common sense is Texans for Lawsuit Reform, and it is currently guiding tort reform legislation through the Texas Legislature that will serve as a model for other states in curbing the abuses of the law and the judicial system. These groups deserve our support. Oliver Wendell Holmes defined law as “prophecies of what the courts will do”. Without arguing the validity of his statement, we should at least agree that, in a society governed by the rule of law, “what the courts will do” must be predictable.
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