Originally Posted by djsherly
Rubbish. Tort reform is about limiting the circumstances of liability and extent of compensation. In most cases it would be to something reasonable under the circumstances. In the first, place I would not leave it to a jury to calculate damages. There is a way to calculate the quantum of damage, and if policy supports it, exemplary damages. It is a stupid idea to give 12 people the opportunity to pull a number out of their arses and send a plaintiff on their way.
Whenever you reduce something to a monetary value these calculations become inevitable. The alternative is incarceration. You would have to turn civil law into something which would have criminal consequences. In a lot of cases criminal code has provision for the same things which could result in a civil action. It would be unnecessary to contort developed law to involve incarceration for tortfeasors if there were a corresponding criminal provision, and the standard of proof would be more in line with what is required to invoke incarceration as a penalty.
EDIT: where a corporation is involved perhaps injunction could be used to prohibit them selling products or services for a period of time.
Indeed. But you can also accept that the current system is not quite right when you got mind boggling sums awarded as damages as is the current case. Remember the principal point about compensation is to put things right, not to find a gravy train.
I'd be all for throwing many of these malefactors in jail, but that's simply never going to happen, and there is not a single proposal for tort reform made, or ever likely to be made, on the floor of the U.S. Congress that includes such a provision. So, basically, what "tort reform" boils down to is simply stripping the risk out of causing injury.
The current system would be perfect for deterrence value if you actually did get mind boggling damages awarded and paid, even on rare occasions. But the simple fact is that doesn't really happen, despite all the propaganda* to the contrary to make you believe it does. Huge damage awards are actually quite rare, often reduced by judges, and even more frequently negotiated down to much smaller numbers that we never even hear about to settle, and/or paid over many, many years.
Juries don't, "pull a number out of their arses." The numbers are put before them and argued over, and then "12 people" decide, given the total circumstances of the case, what's just. People arguing for tort reform don't usually seem to have a problem with 12 people deciding capital murder cases, where a person's life is at stake. Why is it that, all of a sudden, they are unfit to decide a question of whether an injury occurred and what just damages ought to be. Surely a life is more important that a few million dollars, and most tort cases involve much smaller sums.
"Limiting the circumstances of liability and extent of compensation," is nothing more than telling unscrupulous business people in advance exactly what the maximum cost of injuries from unsafe products, or unlawful acts will be, and basically, in most cases, giving them a free ride. It's the very unpredictability of the current system which is in fact its greatest strength.
* Yes, propaganda. A favorite whipping boy of tort reform advocates is medical malpractice lawsuits. These suits, which amount to, "untold millions in awards each year," so they argue, quite loosely with the facts, are driving health care costs through the roof and driving doctors out of practice. The truth is that it's the greed, bad decisions and business practices of the insurance companies themselves, entirely apart from malpractice awards, that are driving up health care costs. Malpractice insurance rates are not significantly affected by damage awards and never have been. Those costs were already factored into the premiums. The most significant factor affecting insurance rates has been, for the last 40 years, bad investments made by insurance companies in financial markets and a desire to recover those losses from those they insure, who in most cases are required by law to pay whatever premiums are dictated. There is a direct correlation between investment losses and rate increases, and there is no correlation between damage awards and rate increases. So, yes, the entire story about how "excessive" damage awards are driving up malpractice insurance rates and thus health care costs is nothing more than a brazen lie concocted to further increase the profits of the insurance industry and promulgated by well paid lobbyists and assorted other PR hacks. The entire case for "tort reform" is built on lies and misrepresentations exactly like the Medical Malpractice Lie.