Rationale of Litigious America

While litigation seems a rational expectation in societies which promote equality, American society seems to experience a significantly higher rate of litigation relative to other western nations. Varied circumstances such as slipping on businesses wet floor, workplace relationships, and even minor slights can land someone into litigation. In examining the likely reason behind this trend, America’s history and the history of many western nations should be discussed, examining the historical events and ideals from those other countries as they have been incorporated into the modern-day attitudes of America. 

History of Freedom

American history and, in fact, world history traditionally recognized differences in the classes and groups of people; specifically, the treatment which was to be afforded someone’s employer, teacher, parents, and elders within the community.  Further delineations segmented men from women, race from race, religion from religion, and rich from poor.  Most significant was the slave to master relationship, as masters had specific expectations of behavior and respect from their slaves, and violations of those expectations often led to brutal consequences.  The settling of the Americas was often embarked upon by individuals seeking to escape the boundaries of their lots in life, and those individuals seeking the independence became to be considered as individualists.  Landing in a new world without the securities left behind resulted in the bulk of these individualists recognizing the importance of strangers and neighbors; in a world with no familial or community connections, with little access to the comforts of a home and food, and with no ability to communicate with their families or friends, the settlers had no choice but to establish mutually-beneficial relationships with strangers.  Consequently, the reciprocity of expectations and consideration for others resulted in a society which demanded fair treatment but exercised tolerance for those around them. As societies became established and rules and regulations for living within those communities were settled, the roles of the individualists began to change.  While still considering the needs of their neighbors, establishing businesses and private contracts led the way to disputes which could reasonably only be settled through legal enforcement.  Consequently, as societies emerged beyond the mere initial settlement stage, it became imminent that an established judicial system would be necessary for intervention.

As American settlement began to grow, many of the settlers expanded westward either out of confidence or out of necessity.  Those individuals, who had previously likely felt helpless to their fates of subserviance, grew to demand the rights and respect associated with their efforts and their consequent holdings (land and business) and grew to demand equality. 

The Beginning of Equality Under the Law

As America moved from its initial mindset of community-which included combining efforts to secure food, create housing and settlements, and working together just to survive—the modern state of life began to emerge; the life of fast-paced, diverse, self-serving focus on individualism and immediate family.  As these early Americans began to shift away from basic survival to focus more on success for themselves and their families, they embarked on their final break from Great Britain and the setting in stone of the future trek for America: ratifying the Constitution of the United States.  This was the first and most prominent step in promoting equal rights for all Americans—unless, of course, you were female or non-white. 

The intent of our founding fathers in ratifying our Constitution was geared toward ensuring the rights of American individuals—of the underdog—with subsequent amendments and movements to reinforce existing—and establish additional—individual rights.  

Civil Rights Movements

As America progressed through the recognition of true freedom for all, various civil rights movements emerged which addressed the needs of specific groups.  For example the individual right to secure an education or secure employment is guaranteed regardless of race, gender, religious preferences, or sexual preferences. While there are some exceptions, the rights to basic necessities do transcend most individual characteristics. Addressing the failures of established equality laws, America’s focus tended to expand to previously exempt groups, such as women and blacks.  As the laws of equality grew to apply to specific groups, the expectation of additional rights also grew.  Aside from the basic presumption that all men are created equal, rights began to be afforded based on characteristics other than gender and race.  Focus on groups such as “black nationalism, radical separatist feminism, gay pride, and the like” (Friedman, The Republic of Choice 65), brought together the demand for acceptance of individualists through the efforts of group rebellion which then demanded recognition as separatists. What was striking, however, was that when such individuals banded together and formed what were, in effect, coalitions, their demands became fueled: their efforts developed into something of a mob mentality wherein the energy spread and grew taking over the process of ensuring equal rights and growing it to demanding legal protections for having their particular characteristic (homosexuality, feminism, etc.) accepted and overlooked. 

Equality in its Current State

The evolution of equality has grown to mean that “every person has the right not to suffer any handicap or disadvantage, in life or law, because of ‘immutable’ characteristics (race, sex, physical disability, old age), or because of a way of life (even choice of sexual partners), or because of those mixtures of choice and birth called ethnicity and religion” (Friedman, Total Justice 106).

Dubbed “plural equality,” it has grown to signify the ideas and ideals held by the masses and are more general expectations than mere thoughts. The expectation of moral equality has provided significant impact on our modern interpretation of equal rights and has shifted the law to consider the individualist rather than the masses.  For example, when examining ‘immutable’ characteristics, there was not sufficient definition to determine which characteristics the protections provided:  American blacks can be 100% African descent, they can be half African descent and half white, they can be a mixture of Hispanic and black, Indian American and black, or any combination of the above. Should an individual define themselves as Hispanic when they are, in fact, of African descent, is it proper for the government to assign race for them or is it more proper for the individual to identify to a particular race?  If such is the case that it is more proper to allow the individual to identify with their preferred race, then there is significant gray area in the law and the protections afforded (including the federal minority preference programs) can be applied to individuals which would not necessarily fall under such programs (for example, an individual with black ancestry but for whom no characteristics of that ancestry appear would receive the benefit of minority preference in spite of carrying on as white in every other aspect of their life).  In essence, when the idea of an immutable characteristic is utilized or brought to light, it is more a question of social interpretation of that individual’s race as opposed to nature’s interpretation. As America becomes more blended and the races blur, such protections become less important and less enforceable. Sexual labels have also become blurred. Whether the protections are for sexual orientation—gays, lesbians, bisexual, or transsexuals who may or may not be in various stages of gender reassignment—we  once again have to examine the application of those labels and the ability to enforce as more and more of the distinctions which initially called for such protections become blurred and obsolete (Friedman, Total Justice 110). 

In effect, what has happened through our trek from settlers to modern-day Americans is that the movement toward making this country truly equal is that the demand for rights and opportunity has shifted from the masses to the individualist.  We have, as a nation, determined that each individual has the ability to live their life in the manner with which they deem appropriate for them regardless of the social norms of the past which those behaviors violate. Because the focus has turned from consideration of one’s neighbor or community to consideration of what the individualist determines they should have, the various movements from the Civil Rights Act through today encourage the individualist to demand that their particular behavior be deemed not just tolerable but, rather, acceptable. 

Conclusion

The result that our legal justice system is available to all regardless of social status, race, religion, sexual orientation, or gender has provided a means for the underdog to level the playing field, and that leveling, coupled with the mentality of quality for all without regard for others, has led to the evolution of our current state in America as a litigious society.

Works Cited

Friedman, Lawrence M. The Republic of Choice: Law, Authority, and Culture. Cambridge, MA: Harvard University Press, 1990. Book.

—. Total Justice. New York: The Russell Sage Foundation, 1985. Book.