There’s Enough Blame to Go Around : ‘Competitiveness’ is more complex than Quayle suggests

Vice President Dan Quayle is already running for re-election. He has been publicly assured by President Bush that he will be on the 1992 ticket but public doubts about his ability continue to dog him. Partly in an effort to counter a negative image, Quayle has been busy, representing the President on 16 official visits to 37 countries and heading the National Space Council and the President’s Council on Competitiveness.

In that last capacity, he began last week to outline what may be one of the themes of the presidential campaign: restoring America’s wobbly economic competitiveness. In a speech to the annual meeting of the American Bar Assn., Quayle presented a package of civil justice reforms that he believes will put American industry back in fighting form. Trouble is, he didn’t do his homework very well.

Quayle blames the legal profession for America’s weakened global economic position. American business is involved in too many lawsuits that result in too many excessive damage awards, he said. With more than “70% of the world’s lawyers,” America is “the most litigious society in the world,” he said, adding that “excessive litigation puts America at a competitive disadvantage internationally.” All of those laments strike a chord with many Americans. Problem is, as usual, the numbers don’t tell the whole story.

To reform the civil justice system, the Competitiveness Council makes 50 recommendations that it believes would encourage more voluntary dispute resolution, expedite trial, cap punitive damage awards and discourage “frivolous” litigation.

But beneath the statistics Quayle cites about lawyers, case filings and the cost of litigation are some very debatable assumptions about the scope and nature of America’s civil justice “problem.” The vice president worries about excessive litigation, yet most types of tort and product-liability filings over the last decade increased at a modest rate when compared with growth in population or expenditures on goods. Moreover, only a fraction of Americans who suffer an economic loss from an injury --one out of 10 in one study--use the liability system to obtain compensation. Much of the $300 billion that Quayle says that we spend annually on litigation is spent not by individuals but by corporations--which are more frequently the “repeat players” in the civil justice system.

Quayle asserts that punitive damage awards have soared in recent decades. But though there is some evidence that such awards are larger and given more frequently, they are still assessed only rarely in personal injury cases, and most frequently are assessed against defendants who juries found intentionally harmed plaintiffs. Moreover, in most cases, the damages actually paid were modest. And there is little hard evidence that the civil justice system makes American industry less competitive or that the measures Quayle proposes would improve competitiveness.

Instead, such proposals as a “loser pays” rule for attorney fees, limiting pretrial motions or making it harder to bring suit in federal courts may further impede the access of individuals who have legitimate claims but limited resources to the courts, particularly in consumer protection or civil rights suits. The strong tradition of individual rights in this country also contributes to the determination of Americans to have their day in court. Proposals to erode that tradition should not be taken lightly.

There’s no doubt that the high cost of litigation and the long delays in some courts are serious national problems. State and federal judges and Congress have been working for years to address them. Quayle’s proposals do little to advance debate over the best approach--but do raise the question of whether his real agenda at the ABA was to participate in the easy sport of lawyer-bashing.