‘Regulation Through Litigation’ Democracy Undermined

The Washington Post published an editorial on June 7th written by Robert J. Samuelson entitled, “Lawyers Unchained.” The author provides a keen examination of the current climate of ‘regulation through litigation,’ citing numerous cases of national interest including the Justice Department’s antitrust case against Microsoft; and the assaults against the tobacco, gun, and healthcare industries. This is what he wrote:

“What is happening is that lawyers, acting on their own and deploying various legal devices, are increasingly trying to set government policies by themselves. Litigation substitutes for political debate and legislative struggle. It’s not a healthy development… We are quietly delegating our democracy in unwise ways. Democracy–politics—is messy because it engages competing interests and attitudes. The conversion of difficult political choices into legal issues (disputes that can be litigated) usually involves a narrowing process that excludes important social considerations. Complex disagreements become simple questions of right and wrong. Compromise gives way to “winner take all” outcomes. We should be wary. Government policies need to achieve a certain level of fairness, popular acceptance and balance among legitimate, if inconsistent, public desires. The more we remove conflicts from politics, the less likely this is… Government by litigation subverts democracy; litigation as politics subverts the law.”

* Samuelson, Robert J. “Lawyers Unchained.” The Washington Post. 6/07/00 pg A31.