Professor Marsha Cohen of the Hastings College of Law wrote the below letter to The Wall Street Journal commenting on the Journal's op/ed piece "The Tort Bar's Comeback" from September 16, 2008 that appears below the letter.
I think Professor Cohen and other law professors ought to have a lot more to say on the subject than this brief letter. I have in the past advocated a letter to the Journal that "frames" the important issues (see this entry) and further have advocated the taking of positions on the issues (see this entry). As indicated in the first link, the idea of "dueling" letters took my fancy.
I will probably resume the efforts I made in 2004/5. This seems particularly appropriate in light of the significant economic problems the country is facing and the need for reducing waste and increasing efficiencies in the economy.
SEPTEMBER 27, 2008
China Could Use Tort Lawyers, More Accountability
It is ironic that you picked Sept. 16 for one of your periodic editorial attacks on the civil justice system ("The Tort Bar's Comeback," Review & Outlook) in light of the news breaking on the same day about the tragic harm to a large number of Chinese babies from infant formula contaminated by the industrial chemical melamine. The same chemical was responsible for the deaths of many Americans' pets some months ago, also because of contamination originating in China. Why are Chinese products causing so much consumer harm (both there and, because of our globalized marketplace, here as well)? China has neither well-enforced regulatory mechanisms nor a torts/insurance system to protect consumers, although my understanding is that it is moving to adopt both. Without a civil justice system that enables those harmed to seek recompense from those who caused them harm, why would any product seller bother to invest in quality control or any other product safety measure?
Are there unethical plaintiffs attorneys? Sure. And there are unethical defense attorneys as well. Are there bad judgments made in personal injury decisions? Absolutely. But there are probably as many denying compensation as granting too much of it. While there are undoubtedly more efficient and equally fair ways to assure appropriate compensation to those injured by economic actors, demonizing the entire civil justice system is an entirely ineffective way to galvanize support for systemic change.
Republicans and Democrats are equally likely to be the unfortunate victims of accidental harm.
Prof. Marsha N. Cohen
University of California
Hastings College of the Law
REVIEW & OUTLOOK
SEPTEMBER 16, 2008
The Tort Bar's Comeback
As voters mull the stakes in this year's election, here's an issue that ought to ring alarms in the ears of serious people: tort reform. After 20 years of state and federal efforts to reform a runaway legal system, the trial bar is reviving the monster.
At the federal level, lawyers and law firms invested in 2006 more than $85 million to get pro-lawsuit Democrats elected. Congress's new leadership has begun a political repayment plan -- packing legislation with provisions to increase the number and size of lawsuits. So far, this effort has been largely stymied by President Bush's veto threat. The tort bar sees 2008 as the real prize; it has already thrown $107 million toward increasing Democratic majorities.
The trial barons are making more progress at the state level, as described in a report by the American Tort Reform Association. States had been making progress: New laws cleaned up venue requirements, reformed punitive and noneconomic damages, and enacted medical malpractice reform. So-called "judicial hellholes" like Texas and Mississippi have seen insurers return and premiums fall.
The trial bar is fighting back, with success. In last year's legislative session, Michigan lawmakers proposed repealing safeguards for prescription drug providers; Maryland legislators wanted to revoke medical liability reforms; and Florida's legislature entertained the nullification of its joint and several liability reforms. The trial bar's big coup was in Colorado, where Democratic Governor Bill Ritter signed a law increasing previous limits on noneconomic damages.
Lawyers have also been laboring to create opportunities for more lawsuits, more money and more time to sue. Last year, Alabama saw legislation that would allow a tort claim to continue even after a plaintiff had died, while California proposed authorizing lawsuits for any violation of privacy. New Mexico and New Jersey passed laws authorizing citizens to file "false claims" suits on behalf of the state -- in effect turning private individuals into state bounty hunters.
Four states -- Colorado, Washington, Illinois and Texas -- considered proposals to increase the size of awards plaintiffs could claim, and with it attorneys' contingency fees. The tort bar pushed bills across the country to expand "consumer protection" damages and in at least three states to allow plaintiffs to claim damages for "emotional harm" when their pets are injured. In Maryland and Oregon, lawyers successfully shepherded new laws to extend the time in which plaintiffs could file lawsuits.
Plenty of legislatures remain wary of walking back down the highway of ruinous lawsuits, while many Governors say they'll veto this legislation. Still, the lawsuit industry is counting on discontent this fall to help flip a few more legislatures and governorships to pro-tort majorities, laying the groundwork for their proposals to become law. Tort reformers will have to push back.