Viva torts!(analysis of American tort law)

• Author: Linden, Allen M.

1. INTRODUCTION

2. THE MISSION OF TORT LAW

3. BRIEF HISTORY OF AMERICAN TORT LAW

4. THE ASSAULT ON TORT LAW

5. FUTURE DIRECTIONS

6. CONCLUSION

   I . INTRODUCTION

   I am delighted to be here celebrating the legacy of Tom Lambert, one of my great American heroes. Tom was the Poet Laureate of Tort Law. He believed in tort law as the "Jurisprudence of Hope." (2) His romantic articles and exuberant speeches did more for the advancement of tort law than those of any other participant in the discourse over the value of tort law to Americans. He was an enthusiastic, passionate, steadfast believer in the tort system. He could make an audience weep as he described the sorry plight of a tort victim. He could make them laugh. Most importantly, he could make them think with his quotes from great philosophers and literature. He loved torts and tort lawyers and we, in turn, loved him.

   Tom enjoyed nothing better than to talk about his beloved law of torts. In that way at least, I am just like Tom, for I too love to share ideas with other torts aficionados. I must confess that I am a "tortaholic," as I expect many of you are. Why is it that I get no kick from champagne, that mere alcohol does not thrill me at all, but I still get a kick out of torts? Why have so many of us been afflicted by torts mania? What is it about torts that so engages us, so tantalizes us, so captivates us?

   I believe, in part, that it is the "human face" of tort law that so attracts us, (3) its capacity for tragedy, for comedy, for pathos, for suffering, for heroism and even for villainy. It can sadden us, shock us, infuriate us, thrill us, inspire us, amuse us, surprise us, and entertain us. The cast of fascinating characters, the exotic and mundane places, and the sometime bizarre events involve us in a kaleidoscope of real life. Many torts cases are like novels or movies, each telling a unique and gripping story. (4) We torts people are blessed with a front row center seat on the drama of life. That is one reason why we so love torts, why it keeps us so enthralled, why it gives us such satisfaction.

   There is also the excitement of the intellectual exercise furnished to us by the tantalizing problems exposed in torts cases. As a Cal-Tech Nobel prize-winning scientist, Richard Feynman, once wrote about his love of science, "[a]nother value of science is the fun called intellectual enjoyment which some people get from reading and learning and thinking about it, and which others get from working in it." (5) Tort lawyers share that type of excitement with scientists. Whenever there occurs a major tragedy--9/11, Bhopal, Chernobyl, AIDS, tainted blood, Princess Diana's death, asbestos, tobacco, mold--tort lawyers, in addition, of course, to the usual human reactions of shock and sadness, cannot avoid analyzing the potential tort liability that may arise. For us, there is challenge and pleasure to be involved in the theorizing and, if we are lucky, in litigating about those issues. In addition, there is a special delight for those of us who are privileged to teach torts to the next generations of tort lawyers, to engage in this analysis in class with law students who participate enthusiastically, optimistically, perhaps naively, in the exercise. In short, tort law and tort lore are a unique reflection of our culture and our English-speaking heritage, providing a welcome arena in which the "culture wars" can be fought peacefully and rationally. (6)

   There is another attractive feature of tort law practice. It gives those who are so inclined, and most tort lawyers are so inclined, the opportunity to help people in trouble. The injured and the bereaved desperately require tort lawyers to help them retake whatever is left of their lives that can be retaken with money. This work is most satisfying to humane, sensitive lawyers. A New Yorker magazine cartoon depicts someone lying unconscious on the floor in an office, having been knocked over by a filing cabinet, which had fallen on him. One of the sympathetic and helpful onlookers shouts, "Quick, someone call a lawyer." Although the cartoon was meant to tease Americans for their tendency to sue too often, the truth is that the shouting onlooker was actually quite astute. If a doctor had been called, instead of a lawyer, the doctor's work in healing the victim or in pronouncing them dead would likely be completed quickly. The lawyer's work, if engaged to help, may last for years before the victim can be "healed," at least as far as can be done by money, so that the legal assistance is frequently far more significant than the doctor's in repairing the whole of the victim's life.

   This joyful intellectual activity, this enhanced capacity to observe the joys and sorrows in life, this ability to engage in a vital part of our cultural expression, this satisfaction for do-gooder lawyers are all certainly worthwhile, side-effects of tort law, but this is not enough to justify the existence of tort law: there must be, and certainly is, social value in what we torts people do. Entertainment and personal satisfaction for tort lawyers are not all there is to torts, for that would not be worthy of our respect, our commitment, our fidelity, nor even our serious attention. Tort law, happily, does have a noble mission.

2. THE MISSION OF TORT LAW

   One scholar has recently written (I kid you not) that tort law has no mission, no social purpose; tort law, like love, he asserted somewhat romantically, has no goals, no ulterior ends. He proclaimed joyously:

   Explaining love in terms of ulterior ends is necessarily a mistake, because a loving relationship has no ulterior end. Love is its own end. In that respect, tort law is just like love. (7) It is true that tort law, like love, is valuable for its own sake, but there are many aspects of love and many facets of tort law. Professor Weinrib, by maintaining that there are no pragmatic ends of love and of torts, undervalues them both. There is more to love and to torts than just their intrinsic unpolluted merit, however splendid that may be. Neither should be sold short.

   True, the greatest thing about love is love itself, but love also inspires song, animates poetry, builds new homes, establishes families, encourages new businesses, etc. In short, love can take credit for many of the good things that happen in our world, even though lovers may not start out with these things in mind. Similarly, tort law may achieve beneficial effects, without necessarily setting out to do so, things like compensation, deterrence and education. Thus, whether by design or not, tort law, like love, is valuable not only intrinsically but also for its other contributions to a better world.

   Nevertheless at this particular time, when American tort law is under serious assault, we must reconsider its value to America, whether it requires major renovation and whether it is worthy of our continuing fidelity. No less a figure than the current President of the United States has disparagingly opined about the credentials and motivation of Vice-Presidential candidate, John Edwards, a former personal injury lawyer. The President has declared, to cheering throngs, that "you cannot be a trial lawyer and be pro-small business." Is there anything in this critique? Or, on the contrary, is tort law actually an instrument that is pro-small business, as it serves and protects honest, careful business people and their customers by challenging and punishing dishonest and careless business. One might respond to the President by asking, "Can anyone who is for democracy, freedom and justice be against trial lawyers?"

   To those of us assembled here, the social functions of tort law are obvious, varied and well-recorded. Although its value and efficacy are sometimes doubted and not always apparent, tort law is a compensator, a deterrer, an educator, a psychological therapist, an economic regulator, an ombudsperson, and an instrument for empowering the injured to help themselves and other potential victims of all sorts of wrongdoing in our society. As Dean Leon Green perceptively wrote, and Tom Lambert repeated many times, "tort law is public law in disguise," serving not only plaintiffs, but society generally. While all of these functions are performed by tort law at various times, sometimes magnificently, they are not always admirably and efficiently achieved. Sometimes unfortunately, tort law fails, fails slowly and fails expensively. We cannot deny that there are some warts on torts, warts that may need treatment. But on the whole, tort law is a glorious tool for a "juster justice and a more lawful law," to use Tom's phrase.

   At least one thing is certain, thousands of injured individuals do collect many millions of' dollars every year to assist them in deriving some comfort and enjoyment from what remains of their shattered lives. Remember, it is not only broken bones and lost lives for which tort law seeks to compensate, but also homes flooded, farms burned, businesses ruined, savings depleted, reputations sullied and every other form of hurt that can be wrongfully inflicted on human beings. Tort law is the protector of virtually all that is worth protecting in our society, furnishing compensation to all those wrongfully damaged.

   Through tort law, those who engage in dangerous activities are meant to be deterred from causing harm by their wrongful conduct. They are made to learn about the potentially tragic consequences of their inattention or callousness. Tort law encourages them to take more care in dealing with their foreseeable neighbors in the future. Tort law does this by gently persuading, by persistent nagging, by constantly offering its counsel of caution--no hammer blows like the criminal law - no rapier thrusts like administrative law--only money damages where loss is caused. There are some who doubt that this deterrent force of tort law is very effective. Others disagree, describing the tort system as a powerful...