Despite the fact that the Supreme Court of the United States continues to make it increasingly difficult for victims of corporate wrongdoing to bring lawsuits, right-wing media still advance the myth that the court system is in desperate need of “tort reform.”

The idea that American plaintiffs are an overly litigious bunch that take advantage of the federal courts with meritless claims that contribute to grievous economic costs is a common stereotype that is often repeated by the conservative media. It also isn't really true.  But that didn't stop The American Spectator from repeating that idea in the September 2013 issue:

AMERICAN LAW, AND especially its rules of civil procedure, seem to take it for granted that one of life's chief joys is the opportunity to sue someone else. Getting to court in other first-world countries isn't easy, but broad is the way to the American courthouse.

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The right to have civil cases adjudged by a jury is afforded constitutional protection in the U.S. Elsewhere, civil juries never got off the ground or were abolished as a sensible reform measure.

Class actions, where lawyers bring a claim on behalf of thousands or millions of unnamed plaintiffs (who seldom see any part of the recovery) are rare outside the U.S.

It's not surprising that litigation rates are so much higher here than elsewhere. Subsidize something and you get more of it. Differences in legal ethics matter. In America, much more than elsewhere, lawyers are encouraged to advance their client's interests without regard to the interests of justice in the particular case or broader social concerns. American lawyers' professional culture is unique in permitting and implicitly encouraging them to assert novel theories of recovery, coach witnesses, and wear down their opponents through burdensome pretrial discovery. Great stuff if you're a trial lawyer, but non-lawyers pay for this through higher consumer prices and foregone jobs.

The Spectator claims that the fear of litigation keeps international companies from investing in the American economy. However, it fails to mention that, according to the nonpartisan Center for Justice & Democracy, tort claims (personal injury claims) “represent only 5% of all incoming civil cases today.”  Moreover, the court system already has rules in place to block frivolous lawsuits from proceeding.

Significantly, the Spectator also ignores the fact that the Supreme Court, under the leadership of Chief Justice John Roberts, has become increasingly pro-business over the last decade. Roberts, along with this conservative cohort, have made it more difficult for victims of workplace harassment to sue their harassers and for consumers to bring class action lawsuits against corporations that have engaged in dubious business practices.

Not only that, contrary to the Spectator's assertion of loose pleading standards (those rules that govern initial court filings), the Roberts court has actually heightened the pleading standard for plaintiffs hoping to get their case into federal court. This means that plaintiffs often have to plead facts that are difficult or impossible to know pre-trial before the discovery phase has begun--something big businesses support because it prevents injured parties from bringing them to court.

The Spectator's claim that damage caps would lower costs and promote economic growth is also questionable. Many states, like California, employ caps on damages in the context of medical malpractice suits. Stanford Law School professors Nora Freeman Engstrom and Robert L. Rabin say that such damage caps, which are far more common than the Spectator suggests, are not only unfair to grievously injured plaintiffs, they aren't all that effective in lowering health care costs.

From Engstrom and Rabin's August 13 Los Angeles Times editorial:

For decades, advocates of tort reform have pushed to limit the amount that courts can award for noneconomic damages such as pain and suffering. The California Legislature first capped this type of damages in medical malpractice lawsuits in 1975, and roughly half the states have followed California's lead.

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One problem is that the effects of caps are not felt evenly. California's cap, for example, limits damages awarded to victims of medical malpractice, while people who sue for other reasons have no such strictures. Caps also have a much greater impact on those who are the most grievously hurt. Someone who is, say, severely brain damaged or paralyzed can collect no more for loss of enjoyment of life than someone who will eventually recover fully.

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Moreover, caps aren't good at doing what they purport to do. Damage caps were sold to the public, in part, as a way to inject predictability into the system. They were to be an antidote to “jackpot justice” -- the notion that lawsuits are like a lottery, with unpredictable losers and winners. But as instruments go, caps are too blunt. While limiting some awards at the top, they do nothing to counteract the problem of big damage awards that fall beneath the cap level but that might nonetheless be regarded as excessive if the plaintiff's injury is slight.

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Malpractice caps have also been marketed as part of the solution to soaring healthcare costs. Certainly, reducing healthcare costs is a worthy goal. But a number of studies have considered whether caps actually cut costs, and results have been mixed. Furthermore, even when an effect is found, it tends to be trivial, with caps cutting total healthcare costs on the order of 0.5%.

“Tort reform” continues to mean letting companies off the hook while leaving injured Americans with fewer avenues for legal recourse. For those who need access to justice the most, the way to the American courthouse hasn't been “broad” for quite some time, a trend the right-wing media apparently hopes will continue.

Photo by Flickr user SalFalko