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Taylor on Bush reforms

National Journal's always-thoughtful Stuart Taylor has a none-too-friendly take on President Bush's preferred federal tort reforms:

"Tort reform" is a dreary phrase for what could be a noble and exciting endeavor. It could be about fixing our system of justice so that more victims maimed by reckless conduct will get the compensation they need, when they need it; so that fewer good doctors and good companies will get soaked for misfortunes that weren't their fault; so that the insurance premiums and prices we all pay will no longer be inflated by legal waste, fraud, and abuse.

Measured against these aspirations, the three Bush-backed Band-Aids now before Congress are tired, unimaginative, incomplete, and -- in the case of a medical-malpractice bill that the House passed in 2003 -- deservedly doomed to defeat.

Taylor complains that the Class Action Fairness Act is needed, but that "the price of getting enough Democrats on board was to make the bill so vague as to leave ample opportunities for forum-shopping and for endless litigation over which court should hear which case." Particularly problematic is an amendment to exempt class actions "on behalf of the general public," which would seem to include the old-section-17200 style suits (in California), and the new-section-349 ones (in New York). Let's hope this gaping hole isn't in the final version, or the bill will be a silly exercise in posturing over substance.

Similarly, the need for asbestos reform is great, but Taylor worries that "the negotiations may well break down, and whether President Bush will make a difference remains to be seen." Recent bickering over the details of the proposal certainly lends credence to Taylor's concern. Thusfar, business and insurance companies have themselves been unable to agree, and the specter of Specter looms over Senate Judiciary Committee proceedings (see Nov. 11, Nov. 16, Nov. 18).

Taylor saves his major attack for the president's proposaed medical malpractice liability reform, which he questions on federalist grounds, suggests raises equity concerns, and asserts would fail to remedy the random, no-deterrence system that med-mal has become. Taylor suggests alternative proposals by Virginia's Jeff O'Connell -- in essence, the a variant of the "early offer" proposal O'Connell developed with Lester Brickman and Michael Horowitz for the Manhattan Institute in 1994 -- and Common Good's Phil Howard (see here) should instead be examined. Of course, both of those ideas, implemented at the national level, would raise the same federalist concerns Taylor outlines in response to the president's plan, a point Taylor sidesteps.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.