Tort Reform and Other Rantings

A friend of mine threw a link to this article up on Facebook earlier.  I started to comment on it, and it rapidly grew into a rant.  So, I thought I would clean it up a little and make it a post.

Straight up, I’ll tell you that I disagree with Adam Cohen’s base premise that civil lawsuits provide a mechanism to correct bad behavior.

Civil lawsuits do two important things: they compensate people who are injured by the bad acts of others and they penalize people and companies for bad behavior. If a company knows it may have to pay a large amount of money if it poses an unreasonable threat to others, it will have a strong incentive to act better.

Lawsuits prod companies to make their products safer. Years ago, lawsuits over the Ford Pinto’s fuel tank fires led Ford to recall the troubled car and improve the design. Since then, all sorts of consumer products – from aboveground swimming pools to children’s pajamas – have been made safer by litigation or the threat of litigation.

Lawsuits also make retailers act more prudently when they sell things. “Dram shop” laws are a classic example. These laws, which allow victims of drunk drivers to sue the bar that sold the liquor, put pressure on bars and restaurants not to let people drive home drunk.

My bullshit alarm is in overload on this one.  Civil lawsuits provide a means for people (individuals) to extract money out of corporations (or other individuals) for a perceived “wrong”.    In civil litigation, the criteria for proving a case is relaxed.  IF I have only half a case, I may sue just to take the case to an out of court settlement.

OMG, the coffee spilled all over me and gave me a 1st degree burn.  Of course I couldn’t tell that the coffee was hot by holding the paper cup, and drinking it while driving in rush hour traffic is normal.  So, now I am going to sue XYZ Coffee for XXX million and be on easy street for my lifetime…. WOOO HOOO.

This is the problem with our society right now.  People have forgotten how to use their brains, and how to earn your rewards in life.

“Look the bank gave me a 20K credit limit.  I am gonna git me some stuff.   What do you mean I have to pay for it?  Hell no, take this card back.   You can’t take my stuff!  It’s mine!  I bought it!”  And a whole service industry has been built to help people do just that, “Are you in debt?  Let us help consolidate your debt, and negotiate with the banks.  You will only pay pennies on the dollar”.  And then the cycle repeats and expands.

But my point is this.  The litigation protection described in Mr. Cohen’s article are the result of treating symptoms in society.  People complain about out of control government (I know I am one of them). They complain about “The MAN” and faceless corporations that are successful and how they want their “fare share” (I did that for a while too).  These are related symptoms of the greater problem of “work”.

A couple of years ago I wrote a long post about our evolving work ethic.  It is a little long with a couple of videos (that I hope still work).  Go read / see it… I’ll wait.

Let’s go back to my basic premise:

  1. Civil Litigation is not useful.
  2. Civil litigation has unintended consequences on our society as a whole and is not effective as a corporate behavior modification.  If the writers of that portion of our code thought it would be, they were mistaken.
  3. The results of Civil Litigation have been multifold including: a proliferation of lawyers, an increase in the size of judicial system, a trend of legislating from the bench based on personal believes not law, a growing insurance industry, increased prices for goods and service at the consumer level, an ability to spur the executive branch (agencies) to action.
Civil litigation laws have also forced additional legislation to prevent the misuse of the codes.  Now I just said misuse, while I believe that civil litigation should be abolished.  If in time there is a valid reason for re-establishing it knowing everything that we have learned over the last century, that’s ok.  But, the only way to effectively address some of the problems with big government is to take an issue (or set of issues) and start over.  Repeal everything and put a new structure in place.
Back to the target, as a nation we embrace the extreme.  We embrace the extreme because in modern society our attention span is limited, and there is an overload of information and other stimuli.  Therefore the run of the mill is not exciting.  We want it all and we want it now.  Journalists are in the business of selling articles, and will look for the current hot buttons in society to help sell their works.  That is the basis for Mr. Cohen’s article, and the basis for named winter storms, and weathermen standing on seawalls during hurricanes, and so on.
With his article Mr. Cohen has tapped a current hot button in society without examining the big picture that is tort reform, and the lack of enforcement of existing criminal laws.  As these two issues are addressed and resolved, I believe that we would have an opportunity to make our society more effective, and to shrink the size of government (which would help to address our revenue and spending issues).  Tort reform, and criminal enforcement are not easy fixes though.  Nor are the exciting and they will not get the media attention that would result in a focused effort on reform.
Sorry, no magic solution here.  I can identify the problem but, I cannot get the folks that need to focus on fixing it engaged.
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