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Comments on Prof. Childs' "tort reform for liberals"

I agreed heartily with most of what Prof. Childs had to say here last week in his excellent "tort reform for liberals" series (starting here; also see entries on his must-read TortsProf site). Maybe this means I've become a liberal (OK, maybe a "classical liberal") but I prefer to think it instead indicates that many of the issues here transcend conventional political labels.

A few observations:

The distinction between the goal of improving the accuracy of court determinations, on the one hand, and the goal of reducing the overall burdens imposed by the liability/litigation system, on the other, dates back as long as I've been involved in the liability debate; at least, I remember many conversations and exchanges in which I urged reformers to explore ways to help the system separate the meritorious sheep from the meritless goats rather than simply pursue changes that discourage both kinds of claim at once (or, yet more problematic, changes that preferentially discourage meritorious/successful claims while leaving the weak kind largely unaffected).

An agenda of improving the accuracy of claims should be less controversial than many other varieties of litigation reform, and yet it is not mere "weak tea" or window dressing. It would be consistent with a frontal and vigorous assault against many of the prime outrages perpetrated by the liability system -- the false claims of autoimmune disease from breast implants, the bogus diagnosis mills in asbestos and fen-phen, the imaginary sudden-acceleration theories, and so forth. In fact, my Manhattan Institute colleague Peter Huber, in his books Galileo's Revenge and Liability, has made a very compelling case for the centrality to litigation reform of some of the same issues Prof. Childs raises, including the handling of scientific testimony and the case for deference to regulatory expertise.

All that having been said, I think it's entirely legitimate and reasonable for litigation reformers to pursue a variety of other objectives as well. Among them are reducing the uncertainty of legal outcomes, including damages calculations; improving the clarity of the law, in particular the clarity of the signals it sends as a guide to conduct; rolling back substantive liability standards where they operate in a destructive or unfair way; and reducing the costs of the process generally. Many reforms don't fit into an "accuracy-improving" framework, but do advance one of these other legitimate objectives. If current law assigns ruinous damage liabilities to innocuous or socially beneficial behavior, then an improvement in the accuracy with which defendants are identified and sued might even be an outcome to be feared.

There is, in fact, a thorough and substantial pedigree for the idea of trying to make lawsuits, even of the meritorious kind, a last resort. "Discourage litigation," as Abraham Lincoln said in his famous bit of advice to lawyers starting out. Every other legal system, so far as I know, arranges its rules of procedure so as to encourage people to think twice before suing and consider taking a settlement, even if their claim has merit; these procedural rules reflect the basic fact that lawsuits are socially destructive things and should be avoided if less destructive alternatives are available.

P.S. I still don't like the idea of "memorial damages", however.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.