Common Good is a powerful new law reform coalition led by Covington + Burling vice-chairman Philip Howard. It claims the US has a lawsuit culture that is paralysing and has developed a ‘fear of law’. Is it really the Common Good? Or is it self interest?

Common Good, a new body led by Covington vice-chairman Philip Howard, is aiming to kill off the claim culture in the US.

Howard, who also happens to be vice-chairman of US law firm Covington & Burling, relates how the child of one of his colleagues recently returned from summer camp with bad sunburn. “All the camp staff were told they weren’t allowed to put sunscreen lotion on the children because they might be accused of ‘an unwanted sexual touching’,” the lawyer says with growing incredulity. “In most schools in the US, teachers are forbidden from touching children, so if there’s a crying first-grader you can’t put your arm around the child. Now that is crazy – quite literally crazy.”

As Common Good sees it, this tale illustrates just how insidious lawsuit culture has become in the US and how paralysing is the ‘fear of law’ (as they would put it) that it engenders.

“Let’s face it, our medical litigation system is broken,” argues Senator Mike Enzi, who intends introducing legislation geared towards reducing medical malpractice litigation, which the Common Good backs. “It doesn’t work for patients or healthcare providers. Even worse, it replaces the trust in the doctor-patient relationship with distrust and fear – fear of the law.”

Later the same day Howard will appear on NBC’s The Today Show to explain how he would fix the “sorry state of justice in American healthcare”, as the lawyer put it in The New York Times editorial he wrote the previous week. It is fair to say that the Common Good movement, which only began in April last year, is gathering momentum with every passing month.

Although the issue of tort reform – cutting down the number of civil law suits, reducing lawyers’ fees and limiting punitive damages – might seem dry and academic for mainstream tastes on this side of the Atlantic, in the US it is political dynamite and has been for years.

A number of claimant lawyers have become multimillionaires on the back of class actions, such as the tobacco and asbestosis claims. They have also been unstinting in their generosity to the mainly Democrat politicians who have so far blocked attempts at reforms. According to one survey, trial lawyers were the Democrat Party’s largest industry donor in the last presidential election.

“It’s the perfect political issue because it’s a stalemate; and so each side stands across their lines and hurls abuse at the other,” observes Howard, a card-carrying Democrat who believes that his party has “sold out to a special interest group”. “We’re comforted in the knowledge that nobody is going to get anywhere,” he adds.

In fact, the New York lawyer contributed the introduction to the then vice-president Al Gore’s book, Common Sense Government, in 1995. Although the debate between Democrats and their long-time benefactors in the legal profession, the big business-backed Republicans, has been stalled for many years, there is beginning to be some movement. Tort reform could well be a pivotal issue in the 2004 presidential campaign and prominent in the platform on which President Bush will seek re-election. This is the context in which Common Good is the group that is making the running.

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