The complete archive is also available.

Torts and Citizen Protection
I was talking with my son recently; he made the mistake of saying "we have a problem with lawsuits in this country" while I was driving.

When I drive, I'm in control of the vehicle, and that spills over into the conversation. "Careful what you say," I said, and then proceeded to move into rant mode, discoursing on the problem of judicial reform.

A couple of decades ago, Reagan Republicans had a mantra of "deregulation." The principle was that regulation was sand in the gears of the machine of American commerce; that regulations were onorous, that "government regulations" were synonymous with "red tape" and were always preceded by the adjective "burdensome."

"That's a matter for the private sector, not government, to handle," they said, as they noted that flight-attendant lawsuits were driving airlines to restrict smoking on flights; that consumer lawsuits were driving kid's pajama manufacturers to preclude flammable fabrics; that patient lawsuits were driving hospitals to safer practices.

They got enough people to buy into that "burdensome government regulations" theme that they could justify eviscerating them -- thereby removing a key citizen protections.

The government can be, through its regulatory and legal system, the best (if not the only) protection a citizen has from the predatory practices of the powerful. Without regulation, the "societal commons" -- air quality, water quality, soil quality, airwave use, product safety, health care, etc. -- is driven by the profit motive, rather than a motive of public good. The profit motive can lead to abuse.

Without regulation, large fees can be charged those poor folks without bank accounts, just for cashing a paycheck. Enron-scale manipulations can go unrecognized, costing citizens dramatically. Pollution can go unchecked, since no one's minding the store. Long-term quality of life can be sacrificed in the interests of short-term profit.

And now, after they've hamstrung governmental regulations (via the justification that lawsuits will prevent the most egregious faults, and that we don't want "faceless bureaucrats" making policy and regulations), they now want to eviscerate the last protection a citizen has: the ability to sue a company, a corporation, or a powerful entity in a way that hurts economically.

Without expensive penalties for misbehavior, what motivation do multi-billion-dollar corporations have to protect individuals, much less environments, or the future?

Without expensive penalties for stupidity, what motivation does, for example, McDonald's (also here) have to change its behavior, since there's plenty of economic reasons to produce coffee at 185 degrees (instead of the industry norm of 135-145)?

Without expensive remedies for stupidity, what motivation does a coal company have to do real bioremediation? Only government regulation? If that's gone, then what?

The dittohead line that "lawsuits are out of control" may be a simplistic, dangerously reflexive response, based on bad information. In reality, judges and juries generally respond with sanity, and within reasonable limits. However, if "tort reform" is pushed forward, we may lose the best defense a citizen has -- the ability to sue, if a large and powerful entity rides roughshod in the the pursuit of profit.

After that long rant, my son was clear. "Papa, this is probably the fourth time in as many years that you've made that point. I meant that *people* are too quick to look to *legal* remedies when other remedies may be available..."

Ah. That's true too. :-/