The evaluation of the civil liability system as one of several mechanisms that society utilizes to accomplish the two purposes of loss compensation and behavior regulation calls for consideration of the roles of the legislative and judicial branches of government.
It is the domain of the democratically elected legislative branch to decide matters of public policy and enact laws that implement the policy decisions that are made. The legislative branch has the power to levy taxes and to decide who pays what taxes and how much. The legislature has the power to decide how tax moneys will be spent and who will receive benefits from the expenditure of tax moneys. It has the power to regulate commercial activity, such regulation entails costs in order for the regulated parties to comply, and the legislature has the power to provide who will pay those costs and how, and this can entail express shifting under the law of costs among members of society. Where costs ostensibly fall more directly on one party, the legislature may specify that a second party shall pay the costs. This is not because the party to whom the cost is shifted is "blameworthy," anymore than persons on whom taxes are levied are "blameworthy;" rather both are expressions of general policy decisions about the economy and society and about who should bear what costs and who should get what benefits.
The legislature also has the power to enact criminal laws and provide for jail sentences and fines to punish those who violate the criminal laws. As part of its power to regulate commercial and other social activity, the legislature has the power to establish regulatory apparatus to promulgate regulations and oversee compliance with the regulations, including by imposing fines and other punishments.
The foregoing powers of the legislature broadly affect all the society's members, and it is deemed of critical political importance to the society that these powers be exercised by the democratically elected legislature that is responsive to the wishes of the voters.
In the exercise of its legislative function, rarely or ever does the legislature make or attempt to make an innocent party pay for the intentional or negligent wrongdoing of another party. That would be contrary to the purpose of trying to regulate behavior to lessen the harms that members of society inflict on one another. In this regard, it is fair to say there is a recognition that the judicial branch is a very proper domain for there to be effectuated payments to a harmed party by a party who has intentionally or negligently harmed the first party.
The role of the judicial branch is to resolve disputes about the meaning and application of the law where parties are disputing the same. The interpretation that a court gives to a law will have effect for other parties who have circumstances to which the law is relevant, other courts may agree or not agree with the interpretation, and the legislature has the ultimate power to change the law if it does not like the interpretation that has been given by the judiciary.
This dispute resolution in the courts may have much broader collateral consequences for society's members who are not parties to the specific dispute. It can effectively substitute the judiciary for the legislature in terms of deciding and implementing matters of public policy, imposing the equivalent of a regulatory regimen, imposing significant costs on society's members, determining who pays the costs for other parties to benefit, and deciding standards of conduct that is enforced by the imposition of financial penalities in order to obtain compliance.
While some collateral effect is inevitable from judicial resolution of disputes between parties is unavoidable, there can be legitimate concern and inquiry if and when litigation in the courts is resulting in significant supplantation of the legislature by the judiciary in the above described ways. This is because, under separation of powers, policy making and the other described legislative powers are supposed to be in the hands of democratically elected legislatures who are directly accountable to and responsive to the voters, and not in the hands of judges.
Plaintiffs lawyers like the judiciary to implement mattters of policy and to exercise the other described legilative powers, because that can be translated into big payments in litigation, and plaintiffs' lawyers don't want to hear anything about the possibility of the judiciary overstepping its bounds, because that could reduce litigation and payments.