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====Controversy over job loss claims==== ====Controversy over job loss claims====
Some advocates of tort reform posit that reforms can significantly reduce the costs of doing business, thus benefiting consumers and the public in the long run. Tort reform supporters point to a study by ] winner ] that shows that bankruptcies from asbestos litigation alone has cost the economy over 52,000 jobs. A study by ] professor ] on U.S. ], ''The Competitive Advantage of Nations'' ISBN 0684841479, found that "product liability is so extreme and uncertain as to retard innovation. The legal and regulatory climate places firms in constant jeopardy of costly and … lengthy product suits. The existing approach goes beyond any reasonable need to protect consumers, as other nations have demonstrated through more pragmatic approaches." Some advocates of tort reform posit that reforms can significantly reduce the costs of doing business, thus benefiting consumers and the public in the long run. A study by ] professor ] on U.S. ], ''The Competitive Advantage of Nations'' ISBN 0684841479, found that "product liability is so extreme and uncertain as to retard innovation. The legal and regulatory climate places firms in constant jeopardy of costly and … lengthy product suits. The existing approach goes beyond any reasonable need to protect consumers, as other nations have demonstrated through more pragmatic approaches."


In contrast, critics dispute claims that the current tort system causes job losses, is an economic drag or has any significant impact on national or global economies. The Economic Policy Institute reports that: "In an April 2002 paper, the CEA (President Bush's Council of Economic Advisors) examined the economic impacts of the tort system in somewhat greater depth. But that paper, too, failed to demonstrate any employment effects of the tort system and made no prediction about the impact of tort law change." During the 1990's, a period in which tort reform on a national level made little progress, a record number of jobs were added to the economy. In contrast, critics dispute claims that the current tort system causes job losses, is an economic drag or has any significant impact on national or global economies. The Economic Policy Institute reports that: "In an April 2002 paper, the CEA (President Bush's Council of Economic Advisors) examined the economic impacts of the tort system in somewhat greater depth. But that paper, too, failed to demonstrate any employment effects of the tort system and made no prediction about the impact of tort law change." During the 1990's, a period in which tort reform on a national level made little progress, a record number of jobs were added to the economy.

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The term tort reform is used by its advocates to describe a change in the United States civil justice system that they believe will improve its efficiency or reduce litigation's adverse effects on the economy.

While the phrase "tort reform" might imply any change in tort law or procedure, the commonly understood use in political and academic arenas describes a movement to limit tort litigation and damages. It does not include reforms that would expand liability, such as laws that create new causes of action or that increase damage awards. The term is also commonly applied to a political movement that advocates several such changes.

Tort reform is a controversial subject, and has been one of the most debated policy issues in recent times.

The tort reform agenda

In general, tort reform advocates contend that there are too many frivolous lawsuits.

The legal definition of a frivolous lawsuit is one that cannot reasonably be supported under existing legal precedent or under a good-faith argument for a change in the law, or one that has no basis in fact. The term has acquired a broader rhetorical definition in political debates about tort reform, where it is sometimes used by reform advocates to describe successful tort lawsuits that are seemingly without merit, or where the judgments seem too high relative to the harm.

Tort reform advocates generally argue that the present tort system is too expensive, and that the system is not even-handed because the amount of per capita tort costs varies significantly from state to state.

Advocates of tort reform also complain of regulation through litigation. Proponents argue that litigation is used to achieve regulation that Congress is unwilling or unable to pass. For example, Rep. Rick Boucher (D-VA) argued in support of a 2005 federal tort reform that gave immunity to gun manufacturers in certain lawsuits because such lawsuits were "nothing more than thinly veiled attempts to circumvent the legislative process and achieve gun control through litigation." Reform supporters complained that (and the Pentagon supported the bill on the grounds that) the plaintiffs were trying to "sue out of existence." In contrast, gun control advocates argued that the legislation took "away the right of victims to be able to have their day in court," the bill gave unprecedented immunity to a single industry, and that the law was unconstitutional to the extent that it conflicted with the Separation of powers.

Critics of tort reform contend that real purpose of the proposed changes is to shield businesses, especially large corporations, from having to pay just compensation to consumers, patients and clients for the harm incurred from fraud, negligence, medical malpractice, product liability or other legitimate tort claims.

How would tort reform affect safety?

Opponents of tort reform contend that supporters exaggerate the costs and ignore the benefits of the current tort system. For example, opponents of tort reform contend that lawsuits encourage corporations to produce safer products, discourage them from selling dangerous products such as asbestos, and encourage more safe and effective medical practices.

Beginning in the early 1980s, Professor Stephen Teret and other faculty at The Johns Hopkins University School of Public Health argued that tort litigation was an important tool for the prevention of injuries. Teret identified several ways that litigation can enhance safety for everyone, including:

1) to avoid paying future damages, the creators of dangerous products or conditions may voluntarily make them safer;

2) where conduct is particularly egregious, courts may award punitive damages to deter that conduct in the future;

3) the process of gathering information prior to trial – called 'discovery' – can bring information to light that can be used by policy-makers to create new laws or regulations."

A 2006 study by Emory University professors Paul Rubin and Joanna Shepherd examined the effect of tort reforms on non-motor vehicle accidental death rates, and found that "caps on noneconomic damages, a higher evidence standard for punitive damages, product liability reform, and prejudgment interest reform lead to fewer accidental deaths, while reforms to the collateral source rule lead to increased deaths."

Controversy over job loss claims

Some advocates of tort reform posit that reforms can significantly reduce the costs of doing business, thus benefiting consumers and the public in the long run. A study by Harvard Business School professor Michael E. Porter on U.S. competitiveness, The Competitive Advantage of Nations ISBN 0684841479, found that "product liability is so extreme and uncertain as to retard innovation. The legal and regulatory climate places firms in constant jeopardy of costly and … lengthy product suits. The existing approach goes beyond any reasonable need to protect consumers, as other nations have demonstrated through more pragmatic approaches."

In contrast, critics dispute claims that the current tort system causes job losses, is an economic drag or has any significant impact on national or global economies. The Economic Policy Institute reports that: "In an April 2002 paper, the CEA (President Bush's Council of Economic Advisors) examined the economic impacts of the tort system in somewhat greater depth. But that paper, too, failed to demonstrate any employment effects of the tort system and made no prediction about the impact of tort law change." During the 1990's, a period in which tort reform on a national level made little progress, a record number of jobs were added to the economy.

Dispute over "litigation explosion" claims

Opponents of tort reform deny claims of tort reform advocates that there is "litigation explosion" or "liability crisis", and they contend that the changes proposed by tort reform advocates are unjustified. Records maintained by the National Center for State Courts show that population-adjusted tort filings declined from 1992 to 2001. The average change in tort filings was a 15% decrease. The Bureau of Justice Statistics, a division of the Department of Justice (DOJ), found that the number of civil trials dropped by 47% between 1992 and 2001.. The DOJ also found that the median inflation-adjusted award in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.

Tort reform supporters allege that these numbers are misleading. They claim that most liability costs come from pre-trial settlements, so the number of trials is irrelevant, and that the largest increase in the number of tort cases occurred between 1970 and 1992. A study by Tillinghast/Towers Perrin claimed the cost of liability litigation outpaced the rate of inflation over the last half century, and represented 2.2% of GDP in 2004 vs. just 0.6% in 1950 and 1.3% in 1970.. It should be noted that Tillinghast/Towers Perrin is an interested party in the politics of tort reform with its operations as a major consultant to the insurance industry and as an insurance company itself with its reinsurance business. The Tillinghast/Towers Perrin study has been criticized by the Economic Policy Institute as unverifiable: "Although TTP's estimate is widely cited by journalists, politicians, and business lobbyists, it is impossible to know what the company is actually measuring in its calculation of tort costs, and impossible to verify its figures, because TTP will not share its data or its methodology, which it claims are 'proprietary.'"

Corporate lawsuit abuse

Tort reform opponents argue that corporations and insurance companies are the worst abusers of the litigation system. In particular, they contend, corporations often use their enormous resources to unfairly delay trial, pursue frivolous appeals, and contest claims in which liability is clear. In response, a number of tort reform supporters argue that that criticism is not a reason to oppose tort reform; such abuse would be deterred by proposed tort reforms such as "loser pays," which would prevent large corporations from using litigation as a cudgel against individuals and small businesses who cannot afford to defend themselves in court by providing an incentive for law firms to provide contingent defense. Opponents of tort reform contend that most private citizens would be afraid to sue wealthy corporations or insurers if they could be bankrupted by an award of the defendant's legal fees if they lost. This would limit legitimate claims, and effectively deny many citizens a forum to redress the harm caused them.

Debates over individual proposals

A number of proposals have been made by advocates of tort reform. These proposals are not agreed on by all 'tort reformers' and are considered by many opponents a roll-back of the reforms of the twentieth century. The collateral source rule, for exmaple, dates back to 1854. These issues are discussed in detail in the "Debate Section."

Further, critics of tort reform contend that real purpose of the proposed changes is to shield businesses, especially large corporations, from having to pay just compensation to consumers, patients and clients for the harm incurred from fraud, negligence, medical malpractice, product liability or other legitimate tort claims.

  • Use of court-appointed expert witnesses and elimination of elections for judges (In other words, mandatory political appointment for both judges and expert witnesses)
  • Requirement that class actions that have a nationwide class of plaintiffs be tried in federal courts.

Lawsuits over FDA-approved products

Prohibiting ctiizens from suing product manufacturers over injuries or death caused by any drug or product that was FDA approved is another change that has been proposed. In Michigan, former Governor John Engler signed such a bill preventing injured citizens from filing a lawsuit to recover medical costs incurred by a dangerous product or drug. This legislation effectively shifts the costs to the doctors and hospitals to shoulder the burden for those without insurance, or the resources to pay the medical bill. This had such a deleterious effect on Michigan's economy that several staunchly conservative Republican state legislators are breaking rank and joining with Democratic legislators to try and repeal this probably-unconstitutional law.

Non-economic damages caps

Main article: Non-economic damages caps

Proposals to cap non-economic damages are one of the most frequently proposed tort reforms, and have generated controversy over their fairness, efficacy, and constitutionality.

Critics complain that limitations on punitive damages and other restrictions on plaintiff's traditional rights will reduce corporate accountability. Because corporations engage in a cost-benefit analysis before considering whether to stop a wrongful action (such as polluting or not enacting proper measures for safety), caps on damages may well encourage coprorate malfeasance. They contend that the prospect of paying a small damage award provides too little incentive to correct the wrongdoing, and would allow the corporation to continue an unsafe practice unless state or federal regulators interceded. For example, 'tort reform' critics point to the Ford Pinto Case, where accountants determined that the expected payout in wrongful death suits would be less than making a design change to prevent the gas tanks from blowing up on minimum impact. The value of human life was not factored into the equation. Another remarkably similar example is the GM sidesaddle fuel tank design. Sales concerns trumped safety concerns by GM engineers. “At the heart of GM's resistance to improving the safety of its fuel systems was a cost benefit analysis done by Edward Ivey which concluded that it was not cost effective for GM to spend more than $2.20 per vehicle to prevent a fire death.”

Joint and several liability

Main article: Joint and several liability

Tort reformers have had the most legislative success in limiting the common law rule of joint and several liability, often replacing it with a rule of proportionate liability. Of the forty-six states that had a joint and several liability rule, thirty-three states have abolished or limited the rule. Opponents of tort reform contend that the elimination of the rule would undercompensate people who had the misfortune to be hurt by more than one person, if at least one of the defendants does not have the financial means to pay his or her share of proportionate liability.

Tort reform in American politics

Tort reform is a political issue. George W. Bush made tort reform a centerpiece of his successful run for Texas governor and of his second-term domestic policy agenda. This has led to the issue becoming more of a major rift between the Republicans and Democrats. In the 2004 presidential election, Democratic vice presidential nominee John Edwards, a successful trial attorney, was criticized by tort reform advocates for lawsuits that he brought against obstetricians on behalf of children who suffered severe birth injuries; reformers criticized the suits as relying on junk science, while Edwards denied the allegation.

Agenda to defund the American Left

Grover Norquist, a leading Republican operative, has shown a politically partisan motivation for tort reform, writing in the American Spectator magazine that "Modest tort reform, much of which has been actively considered by committees in both houses, would defund the trial lawyers, now second only to the unions, and this is debatable, as the funding source of the Left in America." Trial lawyers such as Frederick Baron are major fundraisers of the Democratic Party. Therefore, politically motivated attacks on Baron are consistent with Norquist's philosophy.

Other political agendas

The debate over tort reform was not always a Democrats vs. Republicans or liberals vs. conservatives affair. In the 2000 presidential election, the Democrats' vice presidential nominee, Senator Joe Lieberman, was a leading supporter of tort reform; former New Republic and Slate editor Michael Kinsley has often criticized products liability law. And the conservative pro-life group Center for a Just Society opposes many tort reform measures, arguing that litigation can be used to keep RU-486 off the market.

The United States Supreme Court sometimes weighs in on tort reform debates, but here too, the Justices don't always vote according to their predicted ideological stereotypes. In the seminal case of BMW v. Gore, the Court voted 5-4 that the Constitution placed limits on punitive damages, with Justices Stephen Breyer and John Paul Stevens in the majority, and Justices William Rehnquist, Antonin Scalia, and Clarence Thomas, dissenting. It has been suggested that a Supreme Court under a Chief Justice John Roberts would be more likely to take cases that could resolve tort reform debates.

Players in the tort reform debate

Pro Tort Reform

The tort reform movement and opposition in the United States is mostly funded by large insurance companies, manufacturers, the tobacco industry, and other industries; the Chamber of Commerce and National Association of Manufacturers; and others that have a financial interest in the litigation system., , A number of billionares have given money in support of tort reform; for example, Bernie Marcus, the retired co-founder of Home Depot, has donated millions to tort reform because he's "concerned for the next generation of entrepreneurs whose creativity, risk-taking and innovation are stifled by the current legal and regulatory climate."

A number of industry- and conservative think tanks such as the American Enterprise Institute, the Cato Institute, the Heritage Foundation and the Manhattan Institute have pursued tort reform campaigns.

The American Tort Reform Association (ATRA) -- The ATRA is a Washington-DC-based group that was formed in 1986 to represent hundreds of U.S. and foreign corporations in their bid to overhaul civil liability laws at the state and national levels.]. It is "a coalition of more than 300 major corporations and trade associations"; according to a study called "The CALA Files," published by the anti-tort-reform group Center for Justice and Democracy. ATRA helps coordinate the activities of numerous state groups such as "Citizens Against Lawsuit Abuse" (CALA) that are alleged to be sham front groups, rather than real citizens' groups. ATRA's members are largely Fortune 500 companies with a direct financial stake in restricting lawsuits. Members have included representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries. Corporate giants like Philip Morris, Dow Chemical, Exxon, General Electric, Aetna, Geico and Nationwide have all supported ATRA.

The Manhattan Institute -- The Manhattan Institute has been a recipient of grants totaling $7,875,060 between the years 1985 to 1999, from Castle Rock Foundation , Olin Foundation, Sarah Scaife Foundation, Bradley Foundation, Scaife Family Foundation, Carthage Foundation , Earhart Foundation. The Shelby Cullom Davis Foundation gave the Manhatten Institute $100,000 in 2003 for "Tort Reform Initiatives," and $100,000 in 2004 for support of the Center for Legal Policy's online magazine focusing on tort reform. . Other 'tort reform' advocates who are contributors to the Manhattan Institute include:
1. Billionaire Richard Mellon Scaife, who inherited his millions from the Mellon industrial foundation. A CNN article quoted Burton Hersh, author of "The Mellon Family": "Even as a child, he always saw the correlation between the media and the reputation of politicians. That's certainly been a sub-theme of his life." The article concludes with this statement: "t is a fact this billionaire has spent millions in tax-free money attacking the current occupants of the White House." (then President Clinton). According to this link at Media Transparency, Scaife and his foundations have given $565,000.00 to the Manhattan Institute since 2000 alone. .

2. The Lynde and Harry Bradley Foundation. In 1968, Allen-Bradley (where the money came from) had over 7,000 employees, but only 32 black or Hispanic workers. The federal government forced them to integrate. It's currently run by a former executive of the John Olin Foundation, which helped fund the book "The Bell Curve". The Bell Curve espoused that poverty was caused by genetic inferiorty. This article, also at Media Transparency, details the "racist agenda" of the organization and its efforts to eliminate affirmative action. Since 2000, this foundation has given $585,000 to the Manhattan Institute.

3. The John M. Olin Foundation: This foundation is financed by chemical and munitions money, which are strong advocates of tort reform. An article in the People For The American Way had this quote: "Explaining his efforts to convince corporations to halt grants to university programs deemed "liberal," Olin president William Simon argues that many businesses are "financing their own destruction." "Why should businessmen," Simon asks, "be financing left-wing intellectuals and institutions which espouse the exact opposite of what they believe in?"

Anti-Tort Reform

A number of groups oppose 'tort reform'. These include civil rights organizations, labor groups, consumer organizations, environmental groups and many state prosecutors. . Also opposing tort reform are various law professors, lawyers groups and bar associations, citizen groups such as The Oregon State Council of Senior Citizens, and Mothers Against Drunk Drivers (MADD) .

The Association of Trial Lawyers of America (ATLA) -- Like the conservative pro-tort reform groups, The ATLA is accused of operating 'Astroturf', or front groups disguising their real purpose. Walter Olson of the Manhattan Institute alleges that the Alliance for Consumer Rights is such a sham group, operating from the offices of the New York State Trial Lawyers Association. He also criticizes the ATLA Civil Justice Foundation, which is a non-profit group consumer advocacy groups which awards grants to grassroots consumer advocacy groups (presumably including anti-tort reform groups). To date, the Foundation has awarded more than $1,000,000 to more than 100 organizations. The Foundation is funded through contributions from individual ATLA members, state trial lawyer associations, and its Memorial Grant Program. In 2002, the Association of Trial Lawyers of America (ATLA) became the single largest contributor to federal candidates and the Democratic Party.

Federalism debate

Republicans traditionally voice support for states' rights and say they oppose an excessive role for the federal government. Many of them, however, support federal tort reform legislation that would override state decisions. The supporters argue that this is not inconsistent for such matters as class actions and products liability, because they believe state courts should not be deciding cases that effectively regulate the nationwide economy and that Federalist No. 80 explicitly contemplated the use of federal courts to resolve interstate claims. Concerns about federalism have resulted in modification of proposed federal medical malpractice reform to allow state legislatures to override the caps that the bill creates by default; still, some conservatives make a distinction regarding the appropriate federal role in different types of reform, arguing that medical malpractice is inherently a state-law function..

References

  1. "Gun Industry Buys Bulletproof Political Protection" The Nation. 25 Oct 2006. Retrieved July 15, 2006.
  2. "Tort Reform" Sourcewatch: Center for Justice and Democracy.
  3. "Cases That Made a Difference" ATLA
  4. "Litigation is an Important Tool for Injury and Gun Violence Prevention." Johns-Hopkins University Center for Gun Policy and Research Retrieved July 15, 2006
  5. "Tort Reform and Accidental Deaths" Rubin, Paul H. and Shepherd, Joanna, (February 20, 2006). Emory Law and Economics Research Paper No. 05-17 Available at SSRN: http://ssrn.com/abstract=781424

See also

Uncited References

External links

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Con

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