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Principles of reform

January 18, 2005 11:10 PM

Dear David,

You write:

The concerns you raise about demographic influences on verdicts are best examined through comparisons of counties, within and across states. What are tort awards like in the courts of wealthy suburbs with large concentrations of corporate executives and subscribers to those business magazines that continuously editorialize about what are alleged to be ´┐Żout of control´┐Ż jury awards?

This one I can answer pretty well.  I don't have data on subscribers to business magazines but let's take the ten-percent of counties with the highest per-capita income, the average award in those counties is $776,475.*  Now let's take the ten-percent of counties with the highest rate of poor blacks, the average award in those counties is $877,838.  Amazingly, it is better to sue in a very poor, probably rural, out-of-the-way county than in a wealthy, urban county where the typical injured person has much higher wages.  Now here is the real shocker, let's look at the average award in the top ten percent of counties with the highest rate of non-black, non-hispanic poor, it's just $389,601.

Like you, I am not very happy with tinkering with the system to produce a given result.  On the other hand, you write as if tort reformers are intent on upsetting a delicately balanced equilibrium.

I am perplexed at the zeal some have to...fundamentally change the very nature of our tort law. How are we to know where to start in making these adjustments and where to stop before the checks and balances no longer align and the playing field is no longer level?

But tort law has already undergone fundamental change and it is continuing to change today!  Even ten years ago a suit against McDonald's for making people fat would have been laughed out-of-court but that is no longer true (see, for example, the web page of banzai Banzhaf!).  Whatever you think about the virtues or vices of the current system it is not well described by checks and balances and level playing fields - think rather of howling winds, pounding rain and a storm-tossed ship nearly lost at sea.  Lawyers, judges, politicians, plaintiffs and professors battle to steer the ship but one way or another the ship is changing course no matter who is at the helm.

Your point about fairness being in the eye of the beholder and the difficulties of using social science research to design outcomes are well taken. I do think, however, that some principles of a good legal system can be defended without reference to awards or particular social groups.

Local issues decided locally and national issues decided nationally, for example, is a pretty good rule of thumb regardless of one's politics.  Thus, moving class actions to the federal courts seems justified to avoid the dictatorship of twelve problem.  Similarly, I am no fan of the FDA but, contra William F. Buckley, I prefer to be governed by FDA physicians and statisticians than be subject to the ill-informed whims of 12 of the randomly chosen unelect.  FDA approval ought to provide some form of safe-harbor for pharmaceutical manufacturers.   

I see that I have moved away from judicial selection. Let me return briefly before turning over the forum. Although I have suggested a greater role for federal judges in tort I do have trepidations when it comes to criminal law. Too many crimes have been federalized and I worry when those who preach federalism and state control suddenly forget those principles when it comes to say medical marijuana.



* Some information on the calculations above. I have data on 41 thousand winning awards from 1803 counties.  In each of the three cases that I examine I compute the mean from a relatively large sample of 3-5 thousand cases.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.