From First Things, June/July 2005, No. 154, p. 68
The Public Square: A Survey of Religion and Public Life
• Rome Diary, etc., Richard John Neuhaus
• “Civic friendship.” What a beautiful idea, but in our rancorous political climate some might be excused for thinking it is a pipe dream. In an instructive little book published by the Acton Institute, Trial by Fury, by law professor (and FIRST THINGS contributor) Ronald Rychlak, applies the idea of civic friendship to tort reform. Here is how a tort system that encourages
accepting responsibility in the context of community relations ought to work: “Those who have been harmed know that the legal system will guarantee that they are compensated, and those who have committed the harm know that society ultimately will not let them avoid responsibility. Above all those without genuine claims will know that neither will the legal system permit their compensation nor will society condone their immorality. This knowledge encourages potential litigants to resolve disputes justly and privately. The perceived superiority of courtroom justice over personal interaction (civic friendship) is neither part of Christian social thought, nor historically corroborated, and it is very harmful to the community and to justice itself. As the tort law system evolved over the past several decades, however, it has moved away from practices that promote community relations. Courts lowered barriers to litigation, dismantled immunities, lessened causation requirements, and increased monetary awards. These developments have transformed the legal landscape and the message that the tort system carries.” Rychlak thinks tort reform is on the way and proposes some directions: “Effective tort reform, therefore, must return the system to one based on fault and causation, that holds responsible those who caused the damage, makes the injured whole, and does not impose upon the innocent. This will require careful examination of the current incentives that exist to the filing of lawsuits, especially class action lawsuits. Among the first matters to be considered would be the restoration of some form of immunities to entities that are today held responsible for actions that are outside of their scope of responsibilities. At the very least, the concept of awarding punitive damages against charities and governmental agencies must be revisited. Judges and juries also need to have more structured guidance regarding punitive damages in all cases. A loser pays system for attorney fees would also go a long way toward easing the fear currently felt by so many individuals and entities in the society.” Civic friendship. An idea that is not only beautiful but, if we have the will and the wit for it, maybe possible.