The Right Wing's Drive for 'Tort Reform'
The real goal is safety. Lawsuits can never provide anything more than frontier justice in a world in which we are surrounded by seemingly innocuous manufactured goods that in fact can injure or kill us. In this world, evil is truly banal--it's the missing plastic seal in a gas tank, the pill we take for morning sickness, the tires on our car. Plaintiff's attorneys can sometimes punish a wrongdoer, but there is no swift and sure law enforcement in our manufactured world. Whopping punitive awards--even in the rare cases where they are awarded and stick--are an embarrassment and a short-term deterrent, but the persistence of corporate wrongdoing over decades argues that the effect wears off. Ford built the flammable Pinto in the 1970s, the rollover-prone Bronco II in the 1980s and its successor, the almost equally hazardous Explorer, in the 1990s.
However, absent a working alternative, there is no substitute for civil justice. Ironically, says Gilbert, Enron and WorldCom probably would never have become headline-making criminal cases had the 1995 federal Private Securities Litigation Reform Act not succeeded in practically wiping out shareholder class actions that for years were a real deterrent to crooked bookkeeping and financial manipulation in publicly held companies. The potential for mischief if Congress were to take a similar course with medical malpractice suits is sobering.
For now, the sheer scale of the harm done to an entire society by a defective mass-marketed product makes the availability of the tort action essential, even while underlining its inadequacies: 11 million workers exposed to asbestos, 10,000 children born with defects due to thalidomide, 1.5 million Pintos recalled, more than 6 million dieters who used Phen Fen, which damaged the heart muscle. These are truly modern plagues.
On the tort reform side, the numbers tell a story of squandered dollars. The $809 "tort tax" was invented by taking $233 billion, which is what insurance industry consultant Tillinghast-Towers Perrin says is the cost of the tort system, and dividing it by the population of the United States. But those billions represent not only legal expenses but the total cost of running the insurance industry, including executive salaries, advertising expenditures and much else unrelated to lawsuits. The real figure is probably less than half that amount.
The numbers game misses the point, because while the plaintiff's lawyer is indeed an American creation, billions would still have to be spent to compensate and care for victims even if the tort system were abolished. The legal systems of France, Germany, Japan, Australia and other wealthy countries forbid most personal-injury actions, ban contingent fees and require the loser to pay the winner's expenses, making suits by individuals against corporations impossible. Instead, national healthcare or other compensation schemes cover those hurt in any kind of accident. In Japan, a special industry fund covers air-pollution victims; another pays for injuries caused by pharmaceuticals. "In some sense it's because of the thinness of our welfare state and the kind of fragmentation of authority in this country that we just do more with the civil courts," says Marc Galanter, a law professor at the University of Wisconsin.
It is unlikely we will become less litigious--that there will be less law and fewer legal interventions. Although the number of personal-injury suits isn't rising, the sheer number of laws is increasing rapidly, writes Galanter. As an example, he offers government regulations: In 1960, 14,477 pages were added to the Federal Register. In 2002 the number was 80,322. But it is an open question who will get to manipulate this ever-expanding legal web. Galanter found that between 1962 and 2002, the percentage of civil cases that went to trial in federal courts fell from 11.5 percent to 1.8 percent, an astonishing drop. His conclusion was that the civil trial, with its adversarial public questioning of live witnesses, is vanishing. The implications are disturbing. "When there was a bigger possibility of trial, that distributed the bargaining chips in a certain way. Now we're going to a situation where so few things go to trial, it's not there anymore as a wild card for plaintiffs or underdogs to use," Galanter explains.
In addition to these trends, there is an increasing emphasis on alternative dispute resolution and privatized forums for handling certain legal issues, such as in-house tribunals within companies. If trials all but disappear while the right of ordinary people to sue is restricted, Galanter argues, the legal process becomes more and more about exchanges of paper between and within entities, especially corporations, frequently behind closed doors. Will Americans allow their most unique legal rights to slip down the memory hole?