Tuesday, November 17, 2009
Tim Lytton has a very interesting post up on Torts Prof Blog about the tort system and the accusations of a litigation lottery. Here is the link.
I am very interested in Lytton's critique. I think he is right that tort verdicts are not random like a lottery is. There are extreme cases, but they are pretty universally recognized as extreme and there are plenty of procedural mechanisms for controlling these rare, extraordinary awards through remittiturs, appeals, etc. Lytton is also right that there are no ways that I know of for controlling for the opposite -- people that don't file cases although they have meritorious cases or people who recieve compensation that is too low. (At least in most states and the federal courts because additur is the exception rather than the rule).
So overall I agree that calling the tort system a "lottery" is hyperbole that is counterproductive. But I am not sure about one thing: that cases can be "accurately" priced such that we can say that an outcome is erroneous in some objective way. Here I am not talking about liability, but rather case valuation, often the target of tort reformers.
I am currently working on an essay in which I argue that the valuation of tort cases is culturally based, contextual and therefore must be done comparitively. That is, a case is accurately valued when it is valued at an amount comparable to other cases. This should not be a one way ratchet (only bringing case values downwards rather than up). People concerned that case values are too high should look at the statistics - they are often surprisingly low compared to what media reports would indicate. See this post on state tort statistics for a flavor.
I hope to be able to post my essay on SSRN soon; interested readers can contact me directly.