November 18, 2005

Tort Reform 101

When you hear the word “torte” you probably think: Mmm. Yummy.

When you hear the words “tort reform” you probably think: Change the channel.

Tort reform is not a very delicious issue and it is one about which few Americans are well-informed. The tort system is important because it represents our effort as a civilization to address the wrongs, intentional and unintentional, that we inflict on one another from time to time. As some would say more crudely, “stuff happens.” The tort system is how we deal with it after stuff happens, balancing the needs of victims with practical considerations of the injuring party.

First, a refresher from the first year of law school. A tort is an injury to a person or property, not a layered cake (unless, that is, the cake is filled with shards of glass as one creative Torts professor allegedly served to effectively drive home the homonym). Without knowing it, we are all very familiar with torts. An auto accident injury, a medical malpractice claim, a suit against a tobacco company, a claim against McDonald’s for too hot coffee – these are all torts, and there are many more.

The debate on tort reform pits tort reformers, those who feel too many meritless suits are burdening our judicial system and too large jury awards are bankrupting good companies, against tort crusaders who see tort practice as a noble battle to gain deserved compensation to victims of wrongdoing or negligence. Currently, legislatures nationwide are considering tort reform efforts that may cap jury awards or immunize entire industries from suits. These efforts are throwing out the baby with the bathwater. Effective tort reform would seek to address the problems with the system while recognizing its strengths.

For strengths, tort crusaders cite the field of defective consumer products, where the tort system and the potential for heavy penalties encourages a high degree of care for consumer safety (some would say not high enough) and does a good job of making the consumers who do bring suits whole again. Although some would argue that the costs of defending these suits is debilitating to business, if a company is unable to affordably create a product that is safe enough to not harm people, maybe that company should not be making the product in the first place.

Tort reformers, meanwhile, can point to the field of medical malpractice as particularly illustrative of the problems with the system. When doctors make mistakes, patients’ first instinct is not typically to sue. Instead, they want to know what went wrong and why, and they do not want to worry about paying to fix the mistake. The tort system completely fails to address these concerns. Doctors, spooked that any acknowledgement of fault will translate into a future massive jury award, are reluctant to communicate openly when mistakes are made, making the apology and explanation the patient wants highly unlikely. Since, as Dr. Atul Gawande notes in this week’s New Yorker, the medical profession has come up with no alternative, patients’ next step is to find a lawyer. In the end, often both winner and loser finish the process dissatisfied.

Lawyers themselves are also part of the problem. Because of lawyers and the divergence in the interests of lawyers, their clients, and society at large, the current tort system suffers from a paradoxical problem – there are both too many and too few tort suits. Why too many? Lawyers, knowing the high cost of a suit to any defendant, count on the defendant’s willingness to settle even where wrongdoing is far from clear. Such lawyers bring faulty suits fishing for deep pockets. Conversely, lawyers refuse to bring many smaller, valid claims. Despite the outcry that doctors are overrun by meritless suits, 98% of patients actually harmed by doctors never bring suit. Lawyers will not take such cases because they are not interested unless the potential recovery is enormous. This situation leaves a large segment of the population with legitimate claims and without any means of addressing their grievances.

So, how to reform the system? Here are three suggestions:

- Discourage meritless suits without discouraging suits with merit. In England, losing litigants pay the winner’s legal fees. This system highly discourages bringing suits that simply fish for deep pockets since such plaintiffs may be stuck with the defendant’s legal bills, but it goes too far. “Loser pays” removes any incentive for a plaintiff, such as one harmed by an untested but well-marketed drug, to take a chance on filing a claim. A modified loser pays system recognizing that some losing cases are brought with merit could help both discourage meritless suits and pave a smoother road for cases that deserve to be heard.

- Line up the incentives of lawyers with the incentives of their clients. Lawyers should be rewarded for bringing cases of merit even where a large award is unlikely. Providing juries with the flexibility to assess a standard “lawyer’s award” for even small recovery cases would help provide access to tort victims who cannot currently find representation and must simply swallow their losses.

- Discourage litigation and encourage less adversarial mediation. This is probably the most important step. Dr. Gawande notes that this has been done with respect to vaccines, where a small surcharge is added to every dose of a vaccine, money that goes to a fund to help pay for the expenses of the few victims whose vaccines go awry. Because victims’ needs are met up front, there is no impulse to sue and relations between parties remain cordial and productive.

The tort system needs revamping, but efforts to cap awards and immunize industries from suit only benefit defendants without recognizing the good that the system serves. A more thoughtful debate on tort reform is worth having – perhaps over a delicious layered cake (hopefully without glass).

November 11, 2005

Missed Opportunities on "Elections"

Once upon a time, Americans mocked the elections taking place in the single-party Soviet Union by referring to them as “elections,” rather than elections. The quotation marks implied that the removal of choice from an election stained such an election as inadequate or even fraudulent.

These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.

Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.

Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.

How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.

Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.

Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.

In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.

Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.

The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”

November 04, 2005

Activism Shmactivism

Hardly had the words “Samuel Alito” left President Bush’s lips before conservatives nationwide started gushing about Judge Alito’s judicial philosophy. President Bush insisted that Judge Alito had “a deep understanding of the proper role of judges in our society. He understands that judges are to interpret laws, not to impose their preferences or priorities on the people.” Senate Majority Leader Bill Frist lauded Judge Alito’s judicial restraint and his “respect for the limited role of the judiciary to interpret the law and not legislate from the bench,” a compliment echoed by Roberta Combs, president of the Christian Coalition of America, who called Judge Alito a “strict constructioninst who will not legislate from the bench.”

Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.

The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.

To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.

Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.

Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.

What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.

Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.