Acton Commentary

Tort Reform as a Moral Issue


Earlier this year, Congress passed the Class Action Fairness Act. This is the first of a planned series of laws designed to fulfill President Bush's re-election pledge to reform the litigation system and end lawsuit abuse. The planned reform is not, however, just a “Republican” issue. 2004 Democratic Vice Presidential nominee John Edwards, himself a trial attorney, acknowledged the need for reform during last year's Vice Presidential debate.

When someone has caused harm to another, it is appropriate that he or she rectify the situation. In many cases, rectification can come about without appeal to authority. The offender may offer to repair the damage or pay for a replacement. Perhaps the victim will fully or partially forgive the wrongdoer. In other cases, the parties will seek guidance from a community mediator (such as a minister, a supervisor at work, or an officer within an association). In any such case, the community-affirming values of apology, acceptance of responsibility, and forgiveness are likely to be included in the resolution.

Some disputes, of course, require involvement of the courts. To the extent that the law encourages a proper resolution of difficult situations, first by encouraging settlement without resort to the courts and then by providing a mechanism when litigation is necessary, it serves justice. That is the traditional role of tort law. Over the past few decades, however, tort law has undergone several significant changes.

Many of the recent changes to tort law, taken alone, are benign and some are even laudatory. It is, for instance, often difficult for plaintiffs in environmental exposure actions to prove causation. Courts therefore lessened causation requirements in order to help injured citizens prove their cases. To be certain that corporations take corrective action instead of permitting dangerous situations to exist (and dismissing any associated expenses as “costs of doing business”), courts expanded the amount and the availability of “punitive damages.” For similar reasons, courts abrogated charitable and governmental immunities, and they eliminated rules that precluded recovery when the plaintiff was partially at fault.

The cumulative impact of all these changes made lawsuits easier to bring and made them much more profitable. It did not take long for the entrepreneurial spirit to take hold. Lawyers, who had previously been prohibited from soliciting business, began advertising to attract injured plaintiffs. Jury awards became larger, large awards became more frequent, and tort litigation exploded. The result was a change in the very nature of tort law.

Rather than being a safety net designed to make certain that justice is done when person-to-person contact and other mediating institutions fail, the modern American legal system encourages lawsuits designed to maximize recovery for the plaintiff, regardless of the true culpability of the wrongdoer. It encourages litigation at the expense of forgiveness and understanding, thereby failing to serve justice as it is understood in the Judeo-Christian tradition.

There are many serious economic consequences resulting from these developments. Prices have gone up, employment rates have gone down, businesses have been harmed, and some of the poorest in the society have suffered the most. Increased exposure to tort liability has also had a significant impact on the medical system, increasing costs and making healthcare less accessible. There is, however, an even more fundamental concern related to this recent evolution in tort law.

By making cases easier to win and by holding out the promise of very large awards (sometimes without strict proof of causation) the modern American tort system encourages litigation, discourages one-to-one resolution of problems and the associated inclinations to seek or offer forgiveness, and undermines community. Rather than feeling shame for having caused damage to another, potential defendants jockey for defensible legal positions. Expressions of regret are discouraged because there may be legal ramifications. Similarly, plaintiffs are encouraged to maximize their damages so as to increase the ultimate settlement. Forgiveness is discouraged because it can hurt the later lawsuit. The net result is more distrust between members of the society and less human understanding.

A just tort system assures those who have been injured by another that they will be compensated. It also lets those who have caused the harm know that society will not let them avoid responsibility. Such a system leads to acceptance of responsibility by the wrongdoer and reasonable accommodation by the person who was harmed. In that manner, the system truly serves justice.

As legislators and other lawmakers consider future planned reforms to the tort system, the goal must be to return to a system which affirms the dignity and intrinsic value of the person and the community by placing blame only on those who cause damage, not simply on those who have deep pockets. That kind of system encourages personal responsibility. That kind of system affirms the community. That must be the goal of future reform measures.