Tort Reform another smokescreen for the Constitution destroyers

Tort Reform a Great New Year's Resolution:
"We need to stop these frivolous lawsuits and put caps on disproportionate punitive damages. Or even better yet, move to the English model. There, if you sue somebody and lose, you pay the legal fees for the other side. This might be a simple solution to a complicated problem."

There is a lot of nonsense floating around surrounding the commendable notion of "tort reform" but very few good ideas. This commentary from NewsMax.com consists of lots of evidence that there is a problem and precious little in the way of actual reforms, mostly bad.

To start with the last bad idea of the piece, what are the implications of "loser pays" in the civil courts? One thing it means is that very few suits will be filed on behalf of consumers against businesses and insurance companies. Since the defendants' bar is thickly populated with attorneys with high billing rates, the victim contemplating a suit sees the choice as a small chance of winning damages and large chance of going bankrupt. If a suit under such a system has merit, it might be settled on slightly more favorable terms or perhaps on much worse terms, no one can be sure. In a curious sort of reversal, a "loser pays" system might continue to encourage lawsuit roulette by very poor clients who are judgment proof while discouraging suits by middle class consumers, professional persons and small businesses.

Nathan Tabor, the author of the piece, offers this in his second paragraph: "But like President Bush, I still believe that we must make reforming our system of civil litigation a top priority in 2005. We need commonsense reforms that will restrict frivolous lawsuits, abolish joint and several liability provisions, and limit outrageous punitive damage awards that are completely out of proportion to actual losses."

Let's skip the invocation of the president's name and take up his suggestions seriatum:
1) Judges already have the duty to determine whether a suit is "frivolous" before allowing it to proceed. Some don't seem to recognize frivolity when they see it, others define it differently than some of us might like, and a sometimes suits judged frivolous on first view are remanded for trial after appeal to a higher court. To change this, you have to change the judges, not the laws.
2) Tabor wants to "abolish joint and several liability provisions." For the benefit of non-specialists, when two or more distinct actors are found to have contributed to the commission of a tort, they may be held "jointly and severally liable" which means that each party can be pursued for damages in any amount until the plaintiff has collected the full amount of the judgment. If one or more defendants paid more than their fair share of the total, they may attempt to collect from the others in a separate action. The abuse comes when, for example, a manufacturer is found to be 70% responsible, a distributor, 20% responsible and the store that sold the defective item 10% responsible - but the manufacturer is in China and has no US assets, the distributor has gone bankrupt and the retailer is left paying the entire judgment. These things do happen. It also happens that some entity with deep pockets is dragged into the mix on the basis of a very tenuous connection to the harm in order that the plaintiff has somebody in court with money. There are clearly some circumstances where joint and several liability is appropriate and some where it is not. Tabor just wants to end it. Now, suppose three men work together to design and build a patently defective and unsafe product and sell it to someone who is injured by it, but in the meantime one of the three has died. Should the two remaining partners each pay only 1/3 of the damages leaving the plaintiff out 1/3?
3) Finally, Tabor wants to "limit outrageous punitive damage awards that are completely out of proportion to actual losses." Except for some statutory causes of action which specify double or treble damages, there is no reason why punitive or exemplary damages should be related to actual damages. The purpose of punitive damages is to punish or make an example of the defendant, to hit him hard enough to hurt. If punitive damages are to exist at all, there is no reason why they should bear any fixed relation to the actual damages.

So, Mr. Critic (that's me), what's your solution? First, remember that for every problem, there is a solution that is easy, cheap, ... and wrong! Second, remember the Constitution.

The constitutional problem is that there is all this clamor being orchestrated for Congress to "do something" when Congress only has authority over federal courts and not much of that. Any attempt to reform liability law for the whole nation may be popular, but it would be wrong in principal and void in effect.

What might Congress do to reform the federal system that would be helpful? One obvious reform that I have advocated for a long time addresses the punitive damage problem in a very straightforward way. Since the purpose of punitive damages is to punish the defendant for harm to society generally, there is no reason why that money should go to the plaintiff or his lawyers. All punitive damages should be paid to the government with no contingency fees for the plaintiff's attorneys. Or, we might eliminate punitive damages altogether.

How about excessive awards? We might want to adapt the ancient Anglo-Saxon custom of thane-geld where the law fixed the amount of damages based on the status of the deceased. We could simply specify a system for estimating the future earnings of deceased victims and percentages for lesser injuries like loss of a limb, sight, or consortium (ask your mommy what it means) varying as to whether the injury is permanent or temporary and adding medical costs. In fact, we might establish a commission to do this leaving to the trier of fact only the question of what injuries were suffered as the result whose actions. Pain and suffering are entirely subjective and ought not to figure in the process - a level of pain that is incapacitating would necessitate compensation for the incapacitation, which is in principle quantifiable, and not for the pain itself.