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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.
Incorporated Law Society of
Ireland
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