Sunday, January 30, 2011

D. Kucinich: Poster Boy for Tort Reform

Congressman Kucinich appears to be trying to prove we need tort reform.

Unless of course this is an ironic attempt to call attention to the problem of nonsensical, frivolous suits.

I think not. But here is a pic of a nonsensical, frivolous suit, worn with a pretty bad tie.


Richard Stands said...

Unlike Professor Henry Higgins, who was the poster boy for tart reform?

Anonymous said...

Question: my understanding is that libertarians generally offer lawsuits as a substitute for government regulation. For example, if you had allowed people to sue Union Carbide to recoup the real costs of its actions, then the company would have had an interest in not being so criminally reckless as to commit mass manslaughter multiple times. And then there's no need for regulation. I'm sure I'm oversimplifying?

But then why would you want to limit any lawsuit? I mean, no doubt there are a lot of BS lawsuits. And these suits drive up malpractice insurance, and, in turn, insurance premiums. And this is, in a word, bad.

But if you put legislative limits on lawsuits, then don't you protect harmful behavior? I mean, wouldn't you expect the substance of laws limiting suits would protect Union Carbide against those who would sue it? Why? Because, Union carbide-or whatever private interest-will have more leverage over the legislative process than me/you. Given this, why not let the courts and juries sort out good versus bad cases? Isn't this what you should want, as a libertarian? What am I missing? Honest question.

I mean, you can't on the one hand argue that lawsuits are a substitute for regulation and then on the other hand endorse limits on lawsuits-especially if you (very reasonably) expect laws governing suits (i.e., tort reform) to favor the very entities that will screw consumers/citizens/individuals in order to make a profit.

I'm really looking forward to your response. (Really). I am no libertarian-but I read your site pretty regularly because I know you all are smart and I respect your research and am willing to explore alternative approaches to laws/regulations to solve public problems.

Tom said...

The want is for "reform," not -- strictly speaking -- "limits." Libertarians are advocates of spontaneous order, as opposed to Rules. Our courts have always been governed by a mixture of customary law and of statute, with the former giving way to the later over time, as those who can, do seek to jigger the rules to favor their own pocketbooks.

In a market driven system of civil justice, there must be a balance of costs and risks for the both the plaintiff and defendant. Since today's topic frivolous law suits, I will mention first that it must be within the power of the court to impose the full cost of defense upon the plaintiff. Such a power would be a powerful deterrent to frivolous lawsuits -- and to doubtful lawsuits, as well. More on that later.

Usually, when I propose "loser pays", advocates for the poor will object that a poverty besmitten Indian has little chance of suing Union Carbide International, who could and would spend millions in defense and would demand a bond to such costs, should it prevail. First, it is much more on point to consider this poor Indian's chances of suing the Indian subsidiary of Union Carbide, which was 51% owned by the Indian government. No libertarian would tolerate the idea that a controlling owner of an enterprise could give itself "sovereign immunity," an Anathema!

But our poor libertarian Indian still has a large problem, even if we suppose that "sovereign" owners don't come into the picture. So we must return to the question, is the suit doubtful? There being no certainty in life, everything is doubtful to some extent. But also every human venture (at least every one involving large amounts of money) will attract backers, whose demand for interest is in proportion to the perceived risk. Let me pause here to note that Justice is not free and efforts to make it so have perverse consequence. We suppose that our libertarian Indian victim has a Good Case, so the risk of providing the bond and other expense of the suit are quite low, so backers would be plentiful and their demands for a percentage of the Take very low. By contrast, our very non-libertarian Victim of the Imperfect Sandwich would... well, I leave that to the reader's imagination.

This topic deserves a much longer essay, but as I work for a living, I must leave it be for now. The summary is that libertarian seek not "legislative limits" on much of anything, but Emergent Order on almost everything.

Personal note: Choosing a better sobriquet than Anonymous will usually get you better responses in any discussion. The options are free and still pretty anonymous; see the bottom of the comments page for some of the options.

Anonymous said...

Spontaneous order? Why not the tooth fairy?

Next time I will try to not post anonymously.