Why conservatives should be against tort reform

While it has not received the same attention in recent years that it used to garner, “tort reform” has traditionally been an idea that has been espoused by the political right.  The argument usually is that there is an excessive amount of frivolous litigation that is clogging up our legal system and hurting American businesses.  My goals in this post are threefold.  First, I will explain the basics of the tort system to give a background to readers who are not familiar with this topic.  Second, I will argue that tort reform as it is currently debated is not in the least a conservative idea.  Finally, I will explain why, if tort reform is not a conservative idea, so many conservatives nonetheless argue for it.

What are torts, and why/how would we reform them?

The most basic definition of a tort is a civil wrong.  However, this simple definition belies the breadth of just how many things are encompassed within the word “tort.”  Torts include things from simple battery to professional malpractice, from wrongful death to infliction of emotional distress.  For the most part, any wrong committed between two people that you cannot neatly fit into some other legal category like property or contract probably falls within tort, and sometimes actions that fall within other legal frameworks also have tort applications.  For example, if I were to murder someone, I probably would have charges brought against me by the state in a criminal proceeding, but I also could have a wrongful death action brought against me by the victim’s family – hence the famous distinction between the criminal and civil trials of O.J. Simpson.

When most tort reformists claim we need change in our current system, they are not necessarily talking about torts in general but rather two specific aspects of torts – medical malpractice and mass tort cases.  Medical malpractice is exactly what it sounds like – doctors being sued for alleged mistakes.  Mass torts is a bit blurrier of an area, but it generally refers to incidents that involve numerous plaintiffs spread out both geographically and temporally that have been affected by a limited number of factual patterns.  Two of the better-known examples of mass torts are the asbestos and Vioxx litigations that have taken place during recent decades.  The general argument is that in mass tort and medical malpractice cases in particular, there are far too many frivolous lawsuits brought by ambitious plaintiffs’ lawyers, and these lawsuits end up increasing costs for everyone.

So how would medical malpractice and mass torts be reformed?  To answer this question we need simply look at history, as there has in fact been reform in several areas of tort already.  One such area is labor law.  During the Industrial Revolution, state governments decided that the common law system did not provide employees with adequate remedies against employers when they were injured on the job.  This led states to set up statutory schemes based around administrative agencies to deal with worker injuries – what we today call the workers’ compensation system.  By the mid-Twentieth Century, every state had adopted some sort of workers’ compensation system.  I am not going to delve into whether or not workers’ compensation is or is not a good idea, I rather simply mean to show that reforming a given area of tort law means taking power away from courts and investing it somewhere else, in this case with an administrative agency.

A more recent example of tort reform occurred in the area of mass torts with The Class Action Fairness Act of 2005 (CAFA).  CAFA made it more difficult for plaintiffs to bring class actions in two key ways.  First, the Act gives federal courts increased jurisdiction over class actions.  To get why this is bad for plaintiffs, one must understand that generally plaintiffs like to be in state court and defendants like to be in federal court, because state courts and in particular state juries are thought to be more sympathetic to local residents, while a federal court is thought to be more objective regardless of the parties.  Second, CAFA directs judges to more heavily scrutinize class action settlements.  This is important because plaintiffs often will bring a class action in the hopes of forcing a settlement before ever having to deal with going to trial.  In an effort to reform an area of tort, we once again have judge-made law being preempted by statutes, and here in particular we have state judges being preempted by congressmen in Washington.

Why aren’t modern tort reform efforts conservative ideas?

To answer this question, we first need some sort of definition of what is “conservative.”  I would offer that American conservatism is a political ideology based in minimal government interference in the life and rights of the individual.  I get this definition from asking a question that I think is not asked enough – what is conservatism trying to conserve?  

The answer, I believe, is classical liberalism.  When we look back at some of the great “conservative” thinkers like John Locke, Thomas Jefferson, and Frederic Bastiat, we should note that these were not men who supported the status quo – quite the opposite.  Rather, we think of them as on the conservative side of the spectrum today because modern conservatives are trying to preserve the ideals of these and other great minds, ideals that at their birth were quite radical.  So, conservatism is not just about maintaining the status quo for the sake of the status quo.  Rather, it is about endeavoring to conserve the rights of liberty and property that have been spreading, and continue to spread, to more and more people over time.

The common law system was heavily infused in the development of classical liberalism, as it was based in individualistic ideals.  The system sought to protect private property, enforce the rule of law, and compel compensation by wrongdoers to the wronged.  The system was far from perfect, but excelled at adapting to meet the needs of society like no system before.

The American Founders took this system and framed it in a Constitution that sought to achieve a separation of powers between the branches of government.  The Founders were extremely critical of governmental power, and this skepticism survives in the heart of modern conservatism.  So, it should be in the interest of modern conservatives to maintain this critical separation between the branches of our government as much as is possible.  Sure, there are times when the system needs modification and reform, but conservatives should by their very nature be willing to increasingly centralize governmental power only when absolutely necessary.  As we have seen, if we are to reform an area of tort law, that means taking power away from state courts and putting that power somewhere else, whether that be in a statutorily created administrative agencies at the state level or in the federal government itself.

So just how bad is the situation?  Do we desperately need to reform the tort system to avoid further damage to American businesses?  It seems like every day we hear in the news that someone is suing someone else for some ridiculous amount of money over some stupid incident that does not warrant a lawsuit.

Take the following fictional headline: “Jared sues Bonnie for $400 million because he doesn’t like her haircut.”  In theory, this could be a real lawsuit, and it would admittedly be a ridiculous one.  But the lawsuit would be thrown out almost immediately.  The media fails to explain that just because one person sues another for X amount of money, that does not mean that a judge is going to give the complaint more than a cursory glance before throwing the case out.  The legal system has multiple filters to ensure that frivolous litigation does not make it very far into the system.  In addition to the existence of these filters, consider the following statistics.

According to Bureau of Justice statistics, torts account for fewer filings but more trials than other areas of law.  However, at these trials plaintiffs lose more than they win.  The median non-zero award is $27,000.  Only seven percent of plaintiffs recover more than $1 million, and punitive damages are only involved in five percent of cases.  In cases where punitive damages are involved, the median award is in the range of $25,000.

The number one kind of tort case is not medical malpractice or anti-corporate litigation, but automobile accidents.  According to the Court Statistics Project, “High profile cases such as medical malpractice and product liability account for only eight percent of all tort claims.”  Note that these statistics are from before the Class Action Fairness Act, meaning that if anything there would be even less high profile litigation now.  According to the same source, the typical tort case takes about 14 months to be resolved after the original filing.

Concepts of federalism embedded in our nation’s constitution tell us that we should only be willing to compromise our system of checks and balances when absolutely necessary, and an objective look at the current state of our tort system shows that such a compromise is far from needed.

But if tort reform is not a conservative idea, why do so many Republicans support it?

Many conservatives and nearly all libertarians are all too familiar with how large corporations with armies of lobbyists will use political influence to protect their interests and shield themselves from the legal ramifications of their actions.  The name William Randolph Hearst is enough to put any libertarian worth his salt into an uproar, as Mr. Hearst was a man with significant interests in paper that used his influence to demonize the competing cannabis plant to protect his business interests.

Many might wonder how Mr. Hearst was able to accomplish such a thing almost completely unnoticed in his own time.  And yet, the exact same thing is happening today right under our noses, except this time the subject is tort law instead of cannabis.  The Class Action Fairness Act, for example, was heavily lobbied for by some of the biggest American corporations.  The reason is that they are often the people being sued in class actions, and they do not like it.  So, instead of altering their practices to avoid being sued or simply paying compensation, they went to Congress in an attempt to alter the tort system in their favor.

While I abhor this collusion of big business and government, I must say they have done an excellent job.  Being a supporter of the plaintiffs’ bar makes one “anti-business.”  Medical malpractice lawyers are “ambulance chasers.”  As a result of these lobbying efforts and a concurrent advertising campaign, there is an army of Republican voters in favor of tort reform who cannot even coherently express what a tort is, and who are unwittingly pushing to make our legal system more like that of their worst nightmare – France.

Big business is not a bad thing.  But the collusion of big business and government is a bad thing, and it is something that conservatives more than anyone else should be wary of, as it is this sort of collusion that leads to an erosion of our rights and a failure to equally enforce the rule of law.   If we are to truly conserve the classical liberalism of our Founders, we must understand that as important as business and commerce is, constitutional rights and the separation of powers must still come first.  In the words of Jefferson, “The selfish spirit of commerce knows no country, and feels no passion of principle but that of gain.”

Making money is a good thing, and should be encouraged.  But we must not allow the desire on the part of some to make money to interfere with our judgments about where and how we can assert rights against those who have wronged us.  For that reason, I believe that tort reform as it is currently discussed in the mainstream is contrary to the basic ideals of conservatism.

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