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Tuesday, March 14, 2006

Humanizing Tort Reform

Evan at Notes from the Legal Underground linked to and discussed my series of posts about "Humanizing Torts," providing his perspective as a plaintiffs' lawyer (and as a former defense lawyer):

The discussion has touched on tort reform, too, which seems logical enough: if you humanize torts, the debate about tort reform can take on a new meaning. Consider it from the point of view of a tort reformer: if you're trying to sell a program of curtailing individual rights for the good of corporations, it's much easier to do if you can "de-humanize" the individual. You can do it in a number of ways: you can deride the individual by claiming he or she doesn't care about "personal responsibility"; you can mock the individual by claiming he or she is only interested in "jackpot justice"; you can draw attention away from the individual by focusing on the motives of his or her "greedy lawyer," and so on. Unless you de-humanize the victims, tort reform is a much harder sell.

He says that if he uses stories of plaintiffs in discussions of tort reform, he's accused of being manipulative.

Ted Frank responds in the comments that tort reform should be humanized, too:

One of the reasons I took a pay cut more than my father, mother, and brother make combined to work for liability reform is because I think of the tens of thousands of people who lost their jobs because of abusive asbestos litigation, the countless people who will get cancer because of sloppy mass X-ray screenings for profit, the thousands of people who will die unnecessary deaths because pharmaceutical research has been stymied by litigation lobby greed . . . . [a]mong others. It would be nice if McClurg gave any thought to these people who, even though they may not be parties to the lawsuits he talks about, are surely affected by the lack of liability reform. I daresay my approach is more compassionate than that of the policymaker who thinks it important that randomly selected people win jackpot awards and billions of dollars are extracted from the economy by rent seeking.

I think McClurg's point (at least my view) is that there can be reform in both directions, both correcting problems that are to the detriment of defendants and those that are to the detriment of plaintiffs.  His proposal includes a fairly limited cause of action (and he notes that caps on the money involved could be appropriate), with money not going to the plaintiffs but instead to a utilitarian memorial.  That does not seem to me to be inconsistent with fixing problems that exist elsewhere in the system; indeed, presumably one would want to fix any problems that exist. 

If your conclusion is that what he identifies as gaps -- uncompensated categories of harm and uncompensated categories of people he considers victims -- are not flaws, or not flaws to be fixed, that's fine (and more or less the state of law today).  But one can support both his proposal and support other reforms that reduce exposure for defendants in other contexts.

(Note: Ted also comments here on Andrew's guest post.)

(See the Teaching Torts category for more posts on the topic.)

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I agree with McClurg that the occasional undervaluing of wrongful death is a problem, though I question the magnitude of the problem. People don't insure for hedonic damages, and when they do, it's for fairly small sums. It thus appears to be socially inefficient to mandate this insurance through the tort system, which is a transactions-cost-heavy mechanism for any administrative problem. The fact that the vast vast majority of New Jersey drivers, given the choice, opt out of pain-and-suffering damages in exchange for lower insurance rates suggest a revealed preference that the judicial system already awards more for intangible damages ex ante than would be socially beneficial. There's no acknowledgement of this issue in his paper, however.

When the sixth wife of a arteriosclerotic 59-year-old produce manager is awarded $24.5 million in compensatory damages after a one-year marriage, it's hard to say that public-policy advocates should be focusing on how to ensure more damages are awarded in wrongful death cases. Cap the outliers first. But my comment should have been aimed more at Schaeffer's characterization of McClurg than McClurg.

Posted by: Ted | Mar 14, 2006 2:51:10 PM

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