Monday, April 9, 2007
The article “Judicial Tort Reform In Texas” insists on a distinction between reforming tort law and merely restricting liability. The Texas Supreme Court, one of the most active and important arbiters of tort law in the nation, is restricting tort liability, not so much by reforming tort law as by simply making it difficult for plaintiffs to win. In 2004-2005, defendants won 87 per cent of the cases decided with opinion in that court. Often the decisions turn on determinations that have little precedential value or jurisprudential significance, such as conclusions that the plaintiff's evidence was legally insufficient.
Courts can legitimately promote tort reform; the law that needs reforming is largely judicially made, so it's appropriate for courts to make the needed changes. Indeed, judges generally are better positioned than legislators to see what the real problems are and to understand how particular solutions will work in practice. Legislatures, of course, can also legitimately reform tort law; the common law exists at their sufferance and often benefits from their intervention.
But when the objective is merely to restrict tort liability, the judicial and legislative branches have different roles. It may be perfectly legitimate for the legislature to conclude that the public good will be better served by reducing malpractice premiums and protecting businesses from liability than by compensating tort victims for their injuries. But judges, at least those who repudiate activism, are not free to make such political choices - and certainly not by decisions that evince little more than a determination to prevent plaintiffs from winning.