Blog author: kschmiesing
by on Thursday, August 31, 2006

Tort reform has been on the political agenda for some time. Eric Helland and Alexander Tabarrok make a unique contribution to the debate in their new monograph, Judge and Jury: American Tort Law on Trial (Independent Institute).

The first lines are clever:

Recently each of us has successfully sued more than a half dozen large corporations. No, we are not outrageously rich plaintiffs’ lawyers or the attorney general of New York. In fact, neither of us even knew that we were a party to these suits until we received a letter telling us that a lawyer had sued on our behalf.

The authors examine a number of issues surrounding the tort debate: whether race and poverty influence jury decisions (they do); whether judges would be better arbiters of damage awards than juries (not as much as one might think); and whether regulating contingent fees would improve tort law (it wouldn’t).

What is uniquely compelling about this treatment is that the authors rely more on number crunching than anecdotal evidence to support their contentions. Their conclusions are cautious and reasonable.

What is missing from their account is the recognition that the excesses of tort litigation cannot be addressed by legal reform alone. There is a moral dimension to the problem: a failure to acknowledge and treat others as human persons and a consequent neglect of the demands of the common good. Interestingly, Judge and Jury gestures in that direction. The authors observe that most abuses in the current system occur when juries and judges are assessing claims affecting out-of-state parties—in other words, when the damages levied will affect people far removed from them (and whose personal dignity and rights can be more easily ignored).

For a full treatment of the moral dimension of the tort debate, see Ronald Rychlak’s Trial by Fury.