Tuesday, May 29, 2007
Tony Sebok of Cardozo Law School has posted a review essay on SSRN entitled Dispatches from the Tort Wars, reviewing books by Tom Baker, Herbert Kritzer, and William Haltom & Michael McCann. Here's the abstract:
It is difficult to avoid the conclusion that, as a political matter, the modern tort reform movement has been very successful. This essay reviews three books that either rebut the tort reform movement's central theses or analyze the strategies that allowed the movement to prevail. I discuss Tom Baker's The Medical Malpractice Myth, Herbert Kritzer's Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States, and William Haltom & Michael McCann's Distorting the Law: Politics, Media, and the Litigation Crisis. Although each book has a very different focus from the other two, I argue that a common theme which runs through all three books is that the tort reformers' success relies on promoting myths about how plaintiff's lawyers put their own interests above those of their clients and reject the political culture of individualism that forms the bedrock of American civil society. While I do not want to deny that there is a need for a rebuttal of this part of tort reformers' worldview, I argue that rebutting it has limited value to those who want to defend the current tort system. I argue that an exclusive focus on the myths that the tort reformers have told leaves unanswered other critiques of the current tort system which cannot be so easily dismissed. For example, the tort reformers, as well as others, have noted that the tort system dramatically expanded and changed in the 1960's and 1970's, and that this expansion was often based on academic and political arguments that celebrated the tort system's ability to perform certain functions beyond private redress for wrongs, such as cost-spreading or providing regulation in the face of legislative inaction. By failing to recognize these possible criticisms, the authors of the three books, I argue, leave the hardest battles for another day.