January 2005

Republicans and the Courts: Tort Reform is Bullcrap

The most careless and cynical Republican platform item in 2004 may have been Tort Reform. George Bush argued over and over again that the cost of health care, access to obstetricians, and the war in Iraq would be resolved with Tort Reform legislation. He zipped from town to town selling this snake-oil to America as a Nice Guys vs. the Evil Lawyers issue, which it is not. Tort law is the last recourse for individuals against powerful corporate interests (and a handy tool used by corporations against corporations, too!)

Imagine yourself to be a parent of a sick child. Every doctor you visit tells you the illness is a mystery, but over time you notice that other local children have a similar affliction. If it turns out that a company in your area is putting something into the water, earth or air that should not be there, there is very little you can do. You can write them a letter asking for an apology. You could call the police. Or, you could ask God for help. Either way, you'll get the same amount of help - NONE. For help, you need a lawyer.

With a lawyer you can punish the company for their ignorance/arrogance/pure-evil where it hurts most: their pocket. After all, you cannot send a company or corporation to jail, can you (which underscores the ridiculousness of corporations being afforded the rights of an individual, slipped into case law by a Supreme Court clerk on the take in the late 19th century)? A jury will hear the evidence, determine if someone is responsible, and decide on a monetary punishment. It's very democratic. We all like democracy, don't we?

Big Business does not like it one bit. Corporate America, champions of the myth of the "Free Market", don't believe in taking responsibility for their actions by letting the market exact its consequences. Punishing them is somehow wrong, and in order to reverse that, they have enlisted their favorite republicans (well, all of them) to push for Tort "Reform". Their version of reform replaces a potentially devastating system of punishment into a federally mandated system of slaps on the hand.

Tort Reform is primarily (exclusively if one looks at the web-sites of the major groups supporting it) motivated by economics not justice. These are the major economic argument supporting tort reform:

1) Individuals disposable incomes are diminished as they hire lawyers;
2) Businesses and corporations must spend more on lawyers and pay-outs;
3) It will provide a predictable basis for rewarding plaintiffs.

None of these arguments are based on fair and equality before the law. As such, it does not deserve the attention of any government looking to change current judicial practices, much less 'save' the health-care system.

Tort reform is unnecessary because the concept and the costs "saved" are absurd and trivial, in that order. The concept is absurd because it is essentially the government telling people that even if they have the left leg chopped off in an operation where the right leg was supposed to be removed; it is only going to be worth $250k. It is absurd because it is the president and his jack-ass pals ignoring the fact that extravagant jury
awards are typically reduced by judges or on appeal. It is absurd because the purpose of a punitive award is to punish, and $250k isn't going to turn a whole lot of heads in the multi-national, Fortune 500 world. For the most part, the people slapped with huge judgments against them were asking for it. And a jury of their peers, as outlined in our Constitution, found them guilty of some egregious transgression. Why should they not be punished in full? This is like establishing low mandatory maximums for felonies, which the GOP would certainly not stand for. Could the GOP tolerate a man only being allowed to serve up to 6 months for crack dealing? NO!

The savings are admittedly trivial. Study after study has suggested that the savings to insurance companies will only range in the area of 1-2% at most, and does anyone realistically believe that insurance rates are going to fall by any significant amount? I will be elected president of the United States before insurance rates fall. Tort reform is a handout, and a pretty dirty one at that. People who get big punitive awards get it usually only in rare cases, and only typically where there has been such gross negligence on the part of a doctor/manufacturer/whoever that punitive damages should be awarded to try and discourage bad behavior in the future.

The primary judicial responsibility of the federal government is to ensure that all jurisdictions under their purview follow constitutional and congressional laws (the former taking precedence over the latter). Any laws that are not enumerated under the Constitution or have not been mandated by the congress are not the responsibility of the federal government; they are the responsibility of the states.

The job of the judiciary is to ensure that all are treated fairly and equitably before the law. If anyone or party is not, the judiciary must step in and do so. For example, if the states are abrogating constitutional or federal law, it is the responsibility of the federal judiciary to take the appropriate steps to ensure that such laws are being followed.

What it comes down to is the right wingers would rather limit people's right to seek justice in the courts. Couple their plans for tort reform with their never-ending devotion to deregulation, and individuals are left with absolutely no recourse when they are harmed. This is the heart of their values - leave the defenseless at the mercy of the greedy.

How dare our government attempt to limit the ability of the citizens of this nation to seek justice!