Friday, March 12, 2004
Copyright © Las Vegas Review-Journal

EDITORIAL: Asleep on the bench

Granting legal protections to fast food vendors a mere sideshow

At first blush, you might view the 276-139 margin by which the so-called Personal Responsibility in Food Consumption Act passed the House of Representatives as a sign that sanity has returned to Washington. After all, if it gets past the Senate, the bill, which insulates food merchants from lawsuits by obese patrons, could fend off a host of ludicrous litigation from the reality-challenged plaintiff's bar.

Then again, even if this narrowly written bill becomes law, there's nothing to stop McDonald's customers who contract diabetes or suffer heart disease as a result of consuming Quarter Pounders from suing. Trial lawyers aren't at risk of financial ruin as a result of this law.

Still, the fact that Congress felt it necessary to enter the fray -- to actually prohibit certain types of laughable lawsuits from reaching a courtroom -- should give pause to anyone who values common sense and personal responsibility.

Entrepreneurial attorneys aren't entirely to blame here. Nor is the current tort system. The real problem, legal writer and attorney Philip K. Howard submits, lies with judges who refuse to use their legitimate powers as gatekeepers and prevent the most ridiculous lawsuits from getting to trial.

In a Wall Street Journal commentary published Oct. 22 of last year, Mr. Howard, author of "The Death of Common Sense" and other books about litigation gone awry, pointed out that lawsuits have ramifications that go beyond the welfare of the parties involved; they affect all of society.

"By making people potentially liable for their negligence, law provides incentives for reasonable conduct," Mr. Howard wrote. But, "Allow lawsuits against reasonable behavior, and pretty soon people no longer feel free to act reasonably." And so we have playgrounds devoid of exercise equipment, lest kids get injured, or communities closing swimming pools, in case a patron happened to drown.

Judges could put an end to many such frivolous legal exercises. In criminal cases, judges routinely dismiss cases because the prosecution fails to provide sufficient evidence to bring the matter to a trial.

Similarly, judges in civil disputes have the authority to throw out lawsuits which defy common sense by needlessly restricting individual choice or hindering reasonable risk-taking. Judges should not be afraid to dismiss a frivolous filing if its success would lead to disastrous consequences for innocent parties ... and sanction the lawyer who brought the complaint.

Could this happen? So long as judges are drawn from the ranks of the legal profession, it's anyone's guess. But if we are to survive as a nation built on individual responsibility and the rule of law, such judicial "activism" may be necessary.