The Gazette 1984

GAZETTE

JULY/AUGIJST

1984

Why The Tendency in America to Encourage Litigation? At the risk of overstating my case, I have come back repeatedly to this consistent tendency in the American system to encourage litigation. Lest you think that litiga- tion is one of our popular national sports, I hasten to say that this is not so. Lawyers have never stood high in the public esteem in America; and notwithstanding the recent surge of young people into the profession, lawyers do not stand high in the public esteem today. The proliferation of lawyers and lawsuits in America has been vigorously criticised by some of our most influential public figures, including the Chief Justice of the United States, and the president of Harvard University, who, incidentally, is a lawyer and a former dean of the Harvard Law School. Why then is there this tendency in America to encourage litigation? I will be bold enough to attempt to answer. Historical Overview The American tendency to encourage litigation, I believe, goes right back to the very beginnings of the country. • The colonists who first settled New England were part of the religious and social strife that plunged England into civil war in the seventeenth century. They were impassioned believers, a fervently partisan people. In England, of course, there were two sides to the struggle. By the end of the century, the Monarchy had been restored. Over time, the passion of the Puritans was leavened by the conservatism of the Royalists. But in the American colonies, in New England particularly, there was really just one side. There was no Royalist constituency. The lesson from this struggle that was handed down in America, long after the passion had subsided, was the lesson that had been learned by the Puritans. And it has left its imprint indelibly on American thinking. • In the Puritan experience, the ultimate protection against persecution by the Crown was the English Common Law. • The importance of access to the courts, as the safeguard of individual freedom, became so central to the thinking of the American colonists that the Bill of Rights was added to the American Constitution. • I suspect that there was something in the Puritan character that made them especially prone to litigation. In a recent article comparing the Canadian personality with the American per- sonality, the author made the point that Canadians place a higher value on community interests than Americans do, and that Americans place a higher value on individual rights than Canadians do. I think this is true; and I think this trait in the American personality goes right back to the founding fathers, the early New England Puritans. They were a very self-righteous, self-centred lot. I am sure they were very difficult to live with. People who are concerned with community welfare are willing to overlook personal grievances, at least to some extent. The fiercely independent types, like the Puritans, are much more inclined to be confron- tational.

• As history unfolded, the independent streak in the American character was reinforced. To be sure, there were people who came to the colonies who believed in the traditional social order, based on rank and subordination. But then the American Revolution came along. Those people sided with the Crown, and of course they lost. When the Revolution was over, they had to leave the country; and they moved to Canada. The Revolution was followed by the period of the American frontier, which lasted for about a hundred years. For the frontiersman, independence was not just a matter of personal style; it was a matter of survival. • The end result is that the American ethos contains large doses of independence, egalitarianism, distrust of power and emphasis on individual rights. Combine this mixture with a turbulent history, massive immigration from different parts of Europe, a heterogeneous population and the industrial revolution, and you have a potent recipe for litigation. • Indeed, a good case can be made for the proposition that the American court system has been one of our most effective tools for shaping the political and social development of the country. • * Gael Mahony is current President of the American Association of Trial Lawyers, and is a Partner in the Boston firm of Hill & Barlow.

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