Friday, February 25, 2005

Tort Reform

This article, Tort reform restores the courts, says:
Bravo to the U.S. Congress for passing the Class Action Fairness Act, which will help rein in our legal system that has run amok. With this legislation, consumers are the winners.

Our nation's courts serve, in part, to enable our citizens to resolve civil disputes in a fair and timely fashion. Excessive litigation distorts the courts' purposes, undermines respect for our civil justice system and delays justice for citizens entitled to due process. Some "excessive" civil lawsuits have become legendary. The McDonald's hot-coffee case has made the rounds of TV talk-shows and emerges as a source of cynical comment by jurors during jury selection. Too often, plaintiffs and their clever lawyers ask juries to provide compensation for the failure of common sense and the absence of accepting personal responsibility for one's choices. That's probably not the role the Founding Fathers envisioned for our civil courts.
On the other hand, another author, who I won't publicize with a link, tries to inflame by listing several examples and saying "These lawsuits — and the wrongs that they address — don’t sound frivolous to most people. But make no mistake; lawsuits like these are the target of 'tort reform' and the various efforts to reign in 'frivolous lawsuits.'" He wrote:
Corporate lobbyists have invented another new “crisis.” It’s called “lawsuit abuse,” a big money effort to call attention to the “frivolous lawsuit crisis.”

If you don’t know what a “frivolous” lawsuit is, think of the suit against the tobacco industry. Because of this lawsuit, the industry had to pay billions of dollars in damages. The suit showed that the industry deliberately concealed information on the dangers of smoking, in the hope of getting another generation of children addicted to its cigarettes.

Another “frivolous” lawsuit may force the asbestos industry to pay billions of dollars to workers who developed lung disease or died of exposure to asbestos. Lawsuits have proven that the industry concealed evidence of the dangers of asbestos from its workers for decades. Asbestos manufacturers were concerned that it would be hard to find workers if they knew that the job might kill them.

A third type of “frivolous” lawsuit stems from situations like Love Canal, where a whole community found it was raising its children in toxic waste produced by area industries. Many of these children were born with birth defects, or developed neurological or muscle disorders that prevented them from living normal lives. “Frivolous” lawsuits threaten to make such polluters compensate their victims.

Of course, no one except this author is calling these "frivolous" or arguing that these should not be pursued.

Earlier, I referred to the technique of arguing against program cuts by describing a sympathetic beneficiary who probably wouldn't be cut anyway. This is different. This is the classic "straw man" argument, where the writer describes several situations that are not objectionable to almost anyone and states that his opponent takes an unfavorable position regarding them. The problem is, no one has actually argued that the situations he described are objectionable nor that they should have been prohibited.

However, these two types of arguments are similar in this way: Both describe examples that almost anyone could agree are sympathetic and useful to address. Perhaps those involved in these examples would be adversely affected by the changes proposed. I think most people would agree that a program (or tort reform proposal) should contain enough slack to cover those in need and realize that the slack will allow some undeserving to participate. This is OK, but where do you draw the line? That is a hard call, but not made easier by false arguments regarding examples that are not borderline, that do not fall into the discriminatory zone of benefit.

I think you will find these comments on Asymmetrical Information interesting.