Wednesday, July 14, 2010
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)