Summer Newsletter 2006

Tort Reform Part I: The Social Purpose of Tort Law

Mention the word "tort" and most people think of a fruit-filled pastry; but in Washington, certain members of Congress have something altogether different in mind. For these folks, the word "tort" is usually coupled with the word "reform". What does "tort reform" mean, and why does it provoke such controversy?

The term "tort" means a private or civil wrong, with the added implication that the wrongdoer is required to compensate an innocent party for damages suffered as a result of the wrongdoing. Derived from the medieval Latin word tortum ("wrong"), the root of the word goes back to the ancient Latin verb torquere, which means to twist (compare our modern use of the word "torque"). At its root, therefore, the word "tort" denotes something that is twisted, and needs to be put straight. Critics of the tort system say the system itself has become twisted and is in need of straightening out. They point to "frivolous" lawsuits and "unreasonable" verdicts as evidence of the need for reform. They argue that aggressive trial lawyers and runaway juries are driving up the cost of doing business for everyone.

In future editions of Ideas in Action, we'll consider the question of how or whether Congress should pursue a policy of national tort reform, but for now, we want to examine some of the principles that have historically undergirded the tort system.

The tort system affirms basic human dignity and the sanctity of human life. By requiring a wrongdoer to compensate an injured person for the damage caused by a wrongful act, we affirm the worth, value, and dignity of every member of society. We demonstrate that we take human dignity seriously when, as a society, we guard against encroachments (deliberate or unintentional) by anyone on the dignity or humanity of another. No wrongdoer should be permitted to injure or kill another person with impunity. To hold otherwise undermines society's view of the importance of human dignity and the sanctity of human life.

The tort system promotes responsibility by holding wrongdoers accountable for their actions. Personal accountability is the key to responsible human behavior. We cannot expect people to act in a responsible manner unless we hold them accountable for the consequences of their actions. If we remove accountability for wrongdoing, we encourage people to engage in irresponsible and antisocial behavior. The people who will suffer the most from such behavior will be the weakest and most vulnerable members of our society (i.e., the elderly, the handicapped, and the infirm).

The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community-that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy.

The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of "welfare" which rewards irresponsible behavior and punish es innocent parties.

It should be apparent from the foregoing that the tort system has played an important and historic role in the ordering of civil society by providing all citizens, both weak and strong, the ability to seek justice. That does not mean that the system can't be improved. But to the extent that reforms of the system occur, we should take care to ensure that they are, in fact, improvements. Not all change equates with progress. To quote the Hippocratic oath, we must ensure that we first do no harm.

Taken from Center for a Just Society, Ideas in Action. We will include Part II on our next E-Briefs.