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Liability reform's new direction: procedure



Mark Behrens and Andrew W. Crouse of Shook, Hardy & Bacon have an article (PDF) in the University of Dayton Law Review based on a symposium contribution last year; its title is "The Evolving Civil Justice Reform Movement: Procedural Reforms Have Gained Steam, But Critics Still Focus On Arguments Of The Past". Behrens (who has in the past been a frequent co-author with liability guru Victor Schwartz) and his co-author note that the emphasis of the litigation reform movement has shifted quite markedly in recent years. What might be called the "traditional" movement concentrated on legislating restraints on damages -- non-economic and punitive damages, as well as joint and several liability. It also focused on tort law (hence its popular label, "tort reform"), especially product liability and medical malpractice. Although these older reform ideas have in no way disappeared (and indeed have met with much success in many states), the momentum of reform efforts has shifted steadily toward reform of procedure, including such areas as rules of class action filing and certification, the admissibility of expert and medical testimony, and the problems of forum selection. There is considerable interest as well in attempts to improve the fairness of jury selection and juror instructions, in regulating the emergent "public/private" litigation models by which state attorney generals are enlisted in private litigation causes, and so on. Most of these procedural and organizational topics spill well beyond the boundaries of tort law as such, which makes it ever more misleading, even as shorthand, to describe the effort as one of "tort reform".

A notable passage:

Ironically, as the civil justice reform effort has changed focus, critics of reform efforts seem intent on continuing arguments of the past. Critics seem to be debating the merits of the cold war (e.g., whether caps on damages are sound) while the legal reform efforts of business groups are focused on other issues. One must question why this disconnect exists. It is unlikely that critics of civil justice reform proposals are unaware of the proposals being adopted today. One explanation, therefore, might be that opponents of reform have chosen not to engage in a debate over the current issues of the day because they believe it may be advantageous to play on the perceived inequities of more traditional tort reforms.

Put differently, some defenders of the current system would rather keep the conversation focused on damage caps because it's easier to rally opposition to such caps among legislators, editorial pages, activists, and lawyers themselves than it is to get into discussions of areas like forum-shopping, fee-driven class actions and unprincipled experts-for-hire. When it comes to those areas, a high percentage of lawyers themselves, to say nothing of the general public, recognize that the problems are real and need addressing.

On a personal note, I must report feeling gratified by the general trend Behrens and Crouse are recognizing (without necessarily endorsing the particular procedural reforms they suggest). Back in The Litigation Explosion, and ever since, I've been arguing that procedure is of paramount importance in understanding how we got into the modern litigation mess and how we might get out. It used to feel like a lonely position, but doesn't anymore.

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.