October 19th, 2005

Brad @ Burning Man

What Real (as Opposed to Republican) Tort Reform Looks Like

One of the ideas that George Bush ran for office on, that he hasn't had both the time and the political capital at the same time to even work on seriously, was an idea that goes by the label, "tort reform." Here's the capsule summary of the background to it. If anyone does something that intentionally or negligently harms you or your property in such a way as to cost you money, damage or destroy your property, or cause you serious injury, you're entitled to sue them in a civil court for whatever it costs to make it right again and to replace what they damaged, plus whatever it cost you to sue them for it. That's basic law. (Such a case, like all civil court cases, is called a "tort.") If what they did wrecked your life or caused immense pain or suffering even in the short term, then the jury can recommend that the person or company that hurt you also pay what the consider to be fair economic value for your pain and suffering. And on top of both of those, if the jury feels that what they did was so heinous that an additional penalty on top of economic damages, and pain and suffering, is what it will take to deter them or anybody else from doing the same kind of intentional negligent harm and just writing it off as cost of doing business, they can also impose what are called punitive damages. You probably already knew all of that part of it, although if you're not from the US you may not have known our legal jargon for it.

The idea behind "tort reform" is that juries are handing out such huge awards in "pain and suffering" cases, and such huge awards for punitive damages, that the cost of paying off such suits is wrecking the ability of American companies to compete internationally or even to stay alive, including the ones who just commit innocent mistakes and even some of the ones that haven't actually hurt anybody, but who just have a hard time getting juries to sympathize with them or their rights. The tort reform movement thinks that juries are doing this as a pure socialist form of wealth redistribution; robbing the rich to give to the poor. If you ask them, they'll give you all kinds of horror stories and all kinds of supportive statistics. On the other side of the argument, which is usually the Democratic Party side and even more than that (unsurprisingly) the side of the lawyers who represent the victims in such cases (in American legalese, "the plaintiffs' bar"), is a straightforward appeal to the rule of law, to the literal wording of the Constitution which says that people are entitled to file such suits, and to faith in the court system and trial by jury. This fails to persuade the Republicans, and the defense lawyers for some of the corporations who have been sued, to whom it looks like runaway juries are being used as a tool of extortion to get innocent companies to pay huge damages, to settle out of court the claims of people who weren't even actually injured.

And while all of this arguing has been going on, for several decades now, without a solution in sight, somebody actually went out and solved the fricking problem. I never got around to mentioning this at the time, but it was written up in the New York Times for October 9th, 2005: Jonathan Glater, "The Tort Wars, at a Turning Point." Collapse )

(Somehow I just know that cuglas will have something to say about this.)