There’s a problem with America’s justice system. The problem is that there isn’t any. Justice, that is. There is only "the law", and justice runs a poor second.

The problem lies in who has control of the system: lawyers, liberal judges – and let’s not forget the Congress, composed almost exclusively of lawyers, steeped in self interest and dedicated to the proposition that no out-of-court settlement is too large.

Congress writes the laws of the land, and Congresspersons are, quite naturally, going to write laws that benefit lawyers. Therefore it’s no surprise that the trial lawyers’ political action committee is one of the largest special interest groups in Washington – and one of the biggest donors to election and reelection campaigns.

Judges interpret the laws, and judicial activism among liberal judges (easily in the majority among bench-sitters) is the dirty little back-door secret in the equation. The lawyers in Congress know that the lawyers on the bench will interpret laws such that the greatest benefit goes to . . . lawyers.

Which is why President Bush’s call for a $250,000 cap on damages in medical malpractice suits is a good idea, one whose time has come even as it doesn’t go nearly far enough.

Across the board, tort reform is badly needed, but don’t wait for the lawyers to do it. And since they control the process from start to finish, there is little hope of that happening. In other words, don’t hold your breath waiting for the president’s proposal to get any ink.

Let’s talk about judicial activism for a moment. For the past few decades, liberals on the federal bench have "discovered" rights in the constitution that do not exist. Roe vs. Wade is a stellar example of bad judgment (pun intended). There is no right to privacy in the constitution. Read it sideways, backwards – any way you want. The right to privacy is an invention of the liberal bench. Not that it shouldn’t be there, but that it isn’t.

The founders provided a remedy to accommodate newly discovered rights. It’s the amendment process. In fact, the first ten amendments to the U.S. Constitution – added almost before the ink was dry on the original document – specified certain inalienable rights which the framers thought important enough not to be left to judicial review or interpretation.

But there’s a nagging little problem with the amendment process, at least in the mind of lawyers: it requires the consent of the governed. Special elections must be held at the state level to amend the U.S. Constitution. And at least two thirds of all states must agree that the proposed change is a good idea before it will be canonized into law.

Hold up your hand if you think two thirds of America’s voters would agree to support abortion on demand. Or unconstrained welfare. Or bilingual education. Or taking prayer out of schools. Or giving all those rights to criminals. Or a thousand other things that make your jaws clench when you hear about them on the news.

What has happened, then, is that when the lawyers know they can’t get support at the ballot box, they turn to their friends on the bench, and voila! – judicial fiat – some judge decides for you and me what is in our best interest. Law is created where it did not heretofore exist. The judges simply interpret existing law, and where no law exists, they make it up. Thus a function of the Congress is usurped, and you can just take your frustrations, roll them into a tiny ball, and swallow them, thank you very much.

Oh sure, you can vote for candidates who promise to reform tort law. You can do that until you’re blue. Even if the candidate is truly sincere and tries his/her best to affect reform, there will be no support from the rest of Congress, no vote on the floor of the House of Representatives or Senate, no reform – nothing.

But it’s still fun to speculate on what could be.

You want to hear my version of a perfect world? Two things: 1) outlaw out-of-court settlements, and 2) loser pays.

Out-of-court settlements: Have you any idea how much of your purchasing dollar is spent on previous legal rulings? Try the cost of a common step-ladder, a fast-food burger, or a power tool, just for starters. Some idiot does something really, really stupid and out pops the "personal injury" attorney.

True story: A couple of neighbors decided to save money by jointly purchasing a lawn mower. They then brilliantly surmised that if they were to hold the mower up on either side of the hedge that separated their property, they could use the mower as a hedge trimmer. Fingers lost. Lawsuit. Out-of-court settlement in the millions because the manufacturer didn’t put a warning label on the mower that it wasn’t to be used for that purpose. Step ladders are especially sad. If you have one, take a look at the number of warning labels. Figured out why the price is so high?

Eliminate out-of-court settlements. Force such frivolous lawsuits to go to resolution by a jury of your peers, and many such problems would be eliminated.

Loser pays: Notice how those personal injury attorneys advertise, "You don’t pay unless we collect." Therein lies the other half of the tort problem. Companies settle out of court not because they are guilty, but because the cost of the lawsuit is more expensive than the cost of taking the case to trial. Even if defendants win, they normally can’t recoup the onerous burden of legal expenses. Not to mention the lost time and the bad press they’ve gotten throughout the trial process. (But press bias is another column, another time.)

If the loser in any lawsuit was forced to pay the legal costs of the other side, there would be fewer suits filed.

But it takes both in combination: You have to outlaw out-of-court settlements and force the loser to pay the other party’s legal expenses. Institute these two concepts and there would be legions of lawyers in the unemployment lines. It just warms my heart to think about it.

Now back to the president’s plan to cap medical malpractice suits.

There’s a reason, folks, that medical costs are so high. More than in any other profession, medical malpractice suits are settled out of court – often over the strenuous objections of the physician/medical professional involved.

And nowhere is this more of a problem than in the field of emergency medicine. We demand absolute perfection from medical professionals, and that’s not such a bad thing – until you get into the emergency room, where split-second decisions must be made concerning life or death situations on a daily basis. And when, as it inevitably must, something goes wrong, out pops the personal injury attorney.

You can price step ladders out of the market with frivolous lawsuits and the world will turn to kitchen chairs to solve the problem. But where do you turn when emergency rooms are understaffed, as they often are these days and as more of them will be in years to come if some relief isn’t provided. The problem has reached crisis proportions, and there is no end in sight.

Which is why, as I stated in the fifth paragraph of this column, the president’s call for a $250,000 payout cap, while an important first step, doesn’t go far enough. It is probable that the number of truly frivolous complaints involving alleged medical malpractice far exceeds those with real merit.

And without an attendant ban on out-of-court settlements, coupled with a mandatory "loser pays" clause, the president’s payout cap will be too little, too late.