Tort Reform Is Anti-Democratic (And Ingeniously Marketed)

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If President Barack Obama has to hand his adversaries a bauble in order to achieve success with health care reform, it might as well be the misnomer commonly known as "tort reform." The ends of providing insurance for millions of uninsured Americans, never mind whatever good it might do for the rest of us, is worth the means of giving Corporate America yet another legally-sanctified level of protection against the wailing interests of its customers, consumers, patients, and just plain innocent bystanders. 

But let's not kid each other any longer. As we brace ourselves for yet another round of wrangling over the tail and not the dog, let's all stipulate that "tort reform" is one of the most blatantly anti-democrat concepts to have hit the legal system in the past century. It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

"Tort reform is little more than a scam by an unpopular minority (corporations) against an enormous majority (anyone who is eligible to serve on a jury or who ever already has)." Wouldn't it be great if the President forced those words out of the mouth of the Chamber of Commerce president in exchange for even friendlier litigation rules for Big Business as it confronts changes to our national approach to health care? 


I don't use the word "scam" lightly above. Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.   

Instead, these verdicts came from jurors, one of the justice system's--one of all of governments'--few remaining unassailable cogs. Each time a jury awards a large sum to a plaintiff against a negligent defendant, it's a statement from jurors that the sort of conduct alleged and proven is worthy of punishment by the community. Sometimes, this is the only time in the lives of these people, these jurors, when they will have such an extraordinary say about the events of their time and place. Sometimes they are right. Sometimes they are wrong. But at least in these circumstances they make a difference based solely upon the fact that they are residents of a particular venue. 

Make no mistake--the "reform" in "tort reform" is about eliminating or reducing the ability of trial juries to act as levelers of the playing field; as avengers of otherwise toothless victims; as the voice of a community in meting out justice. It is about helping corporations before individuals; about the bottom line and not the bottom rung. Alas, many of the same folks who tout individualism and freedom and liberty against government control evidently have no qualms about using support for tort reform as their ticket to worship at the Altar of corporate control.     

The reason the topic is again in the headlines is because opponents of health care reform evidently don't have anything better to argue about in their efforts to stop passage of the pending legislation. Fine. The President and his fellow Democrats should concede on tort reform. And at the same time, he should figure out a way to track whether reductions in jury awards, and concomitant decreases in the costs of malpractice insurance, reduce the ultimate cost to consumers of health care and at the same time generate better quality of service.

Of course, we all know what the answers to those questions will be. Which now that I think about it is another thing we ought to be honest about. 

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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