Tort Assignability II
Bill Long 12/10/05
Of Two Minds About Litigation
The primary issue I want to address here is whether the two reasons for prohibiting assignment of choses in action in medieval times still should operate to prevent assignment of tort claims today. Since the first (that law is basically one person against the other) has been so exploded by the development of thirty-party rights and obligations in modern law, I will focus only on the second. That second argument, as you recall, was that enabling the assignment of claims (or tort claims) would lead to stirring up litigation (barratry) and maintenance or champerty (where the "stirrer" has a financial interest in the outcome). In fact, this "second argument" seems itself to be two arguments--prohibition of involvement in suits that aren't "yours" and prohibition on "stirring up" suits. The remainder of this essay will only focus on the medieval English dislike of barratry.
Reluctance to Sue
As the early common law system developed into a series of common law and chancery courts, the philosophy behind litigation was that it should only be undertaken at one's peril and that, in fact, litigation might be an unChristian thing to do. A brief comment on the history of the word barratry might help bring this point into focus. Blackstone, the great 18th century commentatory on the common law, defined it as follows:
"Common barretry is the offence of frequently exciting and stirring up suits and quarrels between his majesty's subjects" (OED, s.v.).
A 1726 statute provided that if a lawyer committed the crime of common barratry, he would be disabled from the practice of law. Barratry, however, was a cumulative offence, and the law made it necessary to prove three commissions of the act. The original sense of "barrat" was probably to "traffic in" or "to practice in" (OED, 'barrat'), and the original meaning of the term, going back to the 15th century, had to do with the purchase or sale of ecclesiastical preferment, or of offices of state. By the 17th century, however, it is used to describe someone who vexatiously multiplied lawsuits.
So what? Why is this so bad? And, what does it mean to "vexatiously" multiply suits? Isn't one person's vexation another's lifeblood? I know many people who avoid personal confrontation like the plague; I also have friends that more or less revel in it. Are the latter people "vexatious?" Well, returning to barratry. A 1670 usage of the term gives us a hint at why the English didn't like it. In a collected volume of his sermons, Bishop John Hackett, in expositing Paul's First Letter to the Corinthians, says that St Paul was: "Inhibiting the Corinthians very sharply for their common Barretry, in going to Law one with another." Now we see that we are thrown not only into the world of stirring up lawsuits in England, but into the Biblical teachings. In I Cor. 6, Paul excoriates the Corinthians with the following words:
"1 When any of you has a grievance against another, do you dare to take it to court before the unrighteous, instead of taking it before the saints? 2 Do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? 3 Do you not know that we are to judge angels—to say nothing of ordinary matters? 4 If you have ordinary cases, then, do you appoint as judges those who have no standing in the church? 5 I say this to your shame. Can it be that there is no one among you wise enough to decide between one believer and another, 6 but a believer goes to court against a believer—and before unbelievers at that? 7 In fact, to have lawsuits at all with one another is already a defeat for you. Why not rather be wronged? Why not rather be defrauded? 8 But you yourselves wrong and defraud—and believers at that."
Hackett was definitely not the only one who felt that the fault for which Paul upbraided the Corinthians was one which his day ought also to avoid.
Returning to Today
I haven't said much about maintenance and champerty, but I hope to do so soon. I think that the only real reason in people's minds that assignability of tort claims is not permitted today is because of the fear that it will lead to a flood of litigation (sort of a modern fear of barratry). This bogey man is often brought up in legislative hearings or in court decisions. Usually it is really not a well-founded fear, but it works so well as a justification that it is continually used.
Some might argue that the fears of maintenance and champerty are still behind our fear of tort assignability, and I will address that presently. But I think that the basic objection is a fear of "ambulance-chasing lawyers" just seeking other venues in which to sue. If lawyers were more highly respected in our culture (see my essay on Prestige), the problem might not be so bad. But because lawyers' popularity and esteem ratings have fallen precipitously in our society in the last 30 years, I don't think that there will be much sympathy for changing the current law. But, then again, the law would first be changed by courts (all lawyers), usually at the recommendation of law professors (most are lawyers) after being argued by lawyers in court. If we can just keep in our hermetically sealed world long enough...
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