In 1899, Charles H. Duell, head of the U.S. Patent Office, was credited with suggesting that the agency should be closed, because “everything that can be invented has been invented.” From his vantage point at the end of the 19th century, the sentiment made sense. The previous decade had brought the world dozens of life-improving advances, from the zipper and the typewriter, to the radio, aspirin and the gas-powered car.
Thankfully, the U.S. Patent and Trademark Office remained open. Innovation has continued relatively unabated since then.
But there is a threat to the growth of these technologies: America’s lawsuit culture.
While our civil justice system protects our society in many ways, there is a darker side. A relative handful of plaintiffs lawyers have figured out how to turn civil litigation into an industry in itself. This group sees lawsuits as a tool not for public justice but for personal enrichment.
Just as that tool has been used against other industries, now it is threatening the tech world. Last month, the American Association for Justice, the plaintiffs lawyer lobbying group, issued a new report entitled “Driven to Safety: Robot Cars and the Future of Liability,” where they claim that new technologies such as driverless cars are best regulated by lawsuits. The report suggests that litigation has historically been the best method of regulating emerging industries and technology and that this view has “consensus” in the legal community.
Indeed, some in the plaintiffs bar have always had an interest in attacking innovative products or “new” industries. This can be traced back to the 1980s, when lawsuits against vaccine-makers threatened public health by jeopardizing access to vaccines. As we now know, vaccinations save millions of lives and prevent countless illnesses, but the plaintiffs bar painted these life-saving medications as a threat to consumer safety. Without Congress intervening to give vaccine-makers legal immunity, vaccine access would have been stifled.
During the 1990s, when host websites were being held accountable for what third parties were posting—from ads to comments—Congress had to step in to protect them from unfair libel suits. By lobbying for Section 230 of the Communications Decency Act of 1996, the tech industry ensured that host sites could not be sued for content they did not create.
What do the consumers of new technology think about the idea of regulation through litigation? Not much.
My organization, the U.S. Chamber Institute for Legal Reform, conducted a national survey of 1,500 adults through Google Surveys and found that an overwhelming majority of consumers (82 percent) feel that lawsuits and lawyers are not the best way to regulate emerging technologies. In fact, 77 percent of consumers believe that lawsuits against emerging technologies, such as cars that operate without drivers, will impede—not advance—innovation.
This view is not surprising. An election-night survey of voters showed an overwhelming 79 percent agreed there were too many lawsuits in America, increasing the cost of everyday goods and services. And the public’s view is not an uninformed one. Research has shown that the U.S. civil litigation system costs more as a percentage of our GDP than any other industrialized nation.
Litigation has become the American economic system’s 800-pound gorilla. On its best day, it is an obstacle that must be accounted for—in everything from the annoying warning labels on ladders reminding you to “never move, shift, or extend [the ladder] while occupied,” to real increases in the cost of necessary products. On its worst day, lawsuits threaten whole new product lines, industries and technological advances.
Lawsuits will always play a role in achieving justice in our society, but they should never be the central regulatory mechanism. To do so is a recipe for slowing innovation and threatening new advances altogether. A paper my organization is releasing this week, “Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies,” examines how the courts and policymakers can ensure technological advancements remain safe without derailing or delaying necessary progress.
Much like the world at the end of the 19th century, we live in an exciting time of heretofore only dreamed-of innovations. While technology will need safeguards, those safeguards should not come principally through lawsuits. To do so would be to unleash the 800-pound lawsuit gorilla on our future.