"The first thing we do, let’s kill all the lawyers.”
Shakespeare, Henry VI, II
Every year we are treated to some new legal spectacle. A suit against cigarette manufacturers for Medicaid costs was settled in 1997 for a whopping $246 billion. Yet the dangers of smoking have been known for decades, and according to the New England Journal of Medicine, smoking lowers overall medical costs because its practitioners die prematurely. An attorney who carries a gun recently was lead counsel in a suit against gun makers, claiming some people use guns violently. Breast implant litigation is bankrupting an industry even though the scientific linkage between implants and disease hovers between shaky and nonexistent. The latest craze? Suing fast food restaurants because certain customers have become fat.
When we gasp at the amount of a jury verdict or at a brazen attempt to misuse the legal system, we can be almost certain that the case comes from the branch of law known as torts. Tort law has a long and venerable history and is instrumental to a free society. This field of jurisprudence allows people to recover money for injuries committed by others who have no necessary legal connection to them. No contract, no constitutional claim, no statute has to come into play. Traditionally, the only requirements for a tort claim have been a comparatively blameless person, a wrongdoer (even if the person did not intend the outcome), causation, and an injury to person or property.
Each of these traditional baselines for pursuing a tort claim is being eroded. In America today, the plaintiff need not be comparatively blameless, the defendant need not be a wrongdoer, causation may be tenuous, and injury need not be established. As a result, plaintiffs, their lawyers, and injustice often come out winners. This standing of tort law on its head is undermining the legal system, the economy, and our sense of personal responsibility.
I Pay, You Pay, We All Pay, recently published by the Manufacturers Alliance, describes some of the costs of our current tort system. They are breathtakingly immense. The book has chapters on such legal issues as punitive damages and on such litigation as that involved with asbestos. Most of the arguments are compelling, despite the bookÂ’s excruciatingly dry prose. The unremitting compilation of facts and details in the book is powerful and, at times, shocking. In fact, the volume sometimes reads like a horror story.
The bookÂ’s chief shortcoming is that the issues and possible solutions are more vast and complex than it makes them out to be. Tort law is enormously complicated today, and people looking for constructive alternatives will find only a few here. Thus this review will spring beyond the covers of this book in search of a fresh perspective.
First, some facts about this looming crisis: Over the past fifty years, the direct costs attributable to the tort system in the United States have increased by an average of 10 percent a year, far outpacing the rate of inflation. The total cost now exceeds $200 billion annually, or $721 per person—over 2 percent of