Judge and Jury: American Tort Law on Trial.

Author:Samuels, Warren J.
Position:Book review

Judge and Jury: American Tort Law on Trial, edited by Eric Helland and Alexander Tabarrok. Oakland, CA: The Independent Institute. 2006. Paper: ISBN 0945999992. $15.95. 168 pages.

Predicated on a narrow conception of the scope of the tort system and of the rules by which tort law should be constructed, this booklet resembles a scholarly work while seeking to achieve "tort reform." The authors lament the expansion of the tort system during the 1970s and 1980s, especially the transfer of legal arrangements for injuries from contracts and private insurance into the tort system, the expansion of what is considered a product defect, and the movement from a negligence standard to a strict liability standard, together causing the increased costliness of the tort system. The developments are interpreted as a shift from punishing negligence (compelling programs deterring future injuries that may over-deter) to mandating producers, in effect, to bundle their products with a particular form of insurance. Comparison with Workers' Compensation--lower transaction costs and quicker payments to victims--leads to criticizing tort insurance as narrow and its payout uncertain and delayed. "The tort system is a continually evolving jumble of fault-based and strict-liability standards that do not fit easily with the goal of low-cost compensation" (p. 13). The "low cost" is that of the companies; whatever its level, the cost of injuries to workers and consumers is quite another matter, largely neglected here, as is the substitution of physician-written contracts of adhesion for tort status of injuries due to negligence. They seek to cap punitive damages and pain-and-suffering awards, modify joint and several liability rules, restrict contingency fees, and limit who can be sued and the use of juries (p. 3). "If most injuries are not paid for by the tort system, and the tort system is an expensive way of compensating victims, then why have a tort system at all? Why not rely on insurance and other forms of compensation as do other countries? ... in areas such as product liability and medical malpractice, the tort system is not delivering large enough deterrence benefits to justify its higher administrative costs, at least given the size of the current system" (p. 15). Such language seems reasonable on the surface, but if "tort reform" is adopted, there is no guarantee that a system working to the advantage of the injured will be adopted. Injuries can result from...

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