July 14, 2010
Rustad on Tort Reform
Mike Rustad (Suffolk) has posted to SSRN his provocative essay The Endless Campaign: How the Tort Reformers Successfully and Incessantly Market Their Groupthink to the Rest of Us. The abstract provides:
Neo-conservatives often employ the theme of personal responsibility to marginalize plaintiffs seeking compensation for mass torts. For example, the tort reformers use techniques of blaming the victim successfully in defending tobacco products liability claims. This groupthink about corporate victimhood deflects attention away from the true victims of defective products, negligent medicine, or unreasonably risky activities. Similarly, neo-conservatives redefined the term "reform" to signify caps and other limitations on recovery for injured plaintiffs in an effort to improve the functioning of the American civil justice system. Tort law's remarkable ability to continually adapt to old causes of action to new threats and dangers makes it an important institution of social control. A strong regime of tort law ensures that not even multi-billion dollar industries, such as those represented by the tort reform movement, are beyond the reach of the law. Tort law is, as it has always been, forward-looking with the ability to confront new social problems and conditions. The tort reformers endless campaign of misinformation threaten to diminish the ability of our civil justice system to evolve to meet the emergent hazards of the twenty-first century.
(Via Keith Hylton's Torts & Products Liability eJournal)
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The use of "neo-conservative" in the first sentence of the abstract discredits the entire paper as thoughtless. Did he send the paper anywhere outside of a left-wing echo chamber so that someone could tell him that "neo-conservative" refers to a specific substrain of conservatism and doesn't mean "really evil conservative"?
The paper is especially shameless in citing to the Stella Liebeck as an example of the tort system working well without any acknowledgement of cases such as McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir. 1997), or Bogle & Ors v McDonald’s Restaurants Ltd.
Ironically, there is a whole section critical of "groupthink," when it is all that the paper exhibits. Is this what passes for legal scholarship these days? I'm saddened for the students who learn torts from this guy, because they're certainly not learning critical thinking.
Posted by: Ted | Jul 14, 2010 10:42:47 AM