On the Proper Place of Torts Among Mechanisms for Ensuring The Public Good

The NYT just had a book review of Thomas Geoghegan’s "See You in Court" which inspired me to note briefly a thought I've had for a long time regarding tort reform.

In any given general problem, there will likely be a heirarchy of potential solutions, ranging from most to least desirable. (Of course,for specific problems, the most desirable solutions are often unavailable forcing a fallback. The best remaining solution may be no solution at all.) There's a lot of truth to O, Superman: "When love is gone, there's always justice; when justice is gone, there's always force." The heirarchy is, people play nice. When they don't, we use the law as a resolution mechanism, and the law is backed by force. Even when the law vanishes or lacks legitimacy, force may be wielded extralegally to fix the problem.

Of course, a fundamental problem of politics (which I've also been thinking about because of events in Venezuela) is to maintain the use of the highest levels of resolution of problems as an alternative to perpetual violence. When institutions fail to bend to demands, they break and the resulting vaccuum of working, legitimate institutions results in a series of failures and inefficiencies that make revolutionary change undesirable except where an injustice is severe and reformist efforts remain unlikely to produce success. (Of course, if you believe this happens fairly frequently, you can share this philosophy and still be free to still call yourself a revolutionary.)

The NYT reviewer, Adam Liptak, contrasts Geoghegan with Philip K. Howard, saying Geoghegan sees the movement away from reliance strong contracts rather than increasing regulation as a cause. This strikes me as a very wierd contrast. I've not read Howard -- could he really believe deregulation prevents lawsuits?

My view, like Geoghegan's, and apparently Howards's, sees a shift in arena as the problem: toward tort from other mechanisms. But like Geoghegan, I believe the problem is not that the ugly ineffecient systems of redress lower on the heirarchy have been promoted so that people forget the better tools available; it is that the better tools have been taken away or become ineffective so that resort is made to something less desirable.

I don't think most people think, why should I talk to my neighbor about their vicious dog when I can just call the police, or why should I call the police when I can just shoot the dog (or the neighbor). Most people are smart enough to know that the better mechanisms should be tried because they are cheaper, easier, generate less pain for both sides or for the public at large, and at times can be more effective. Most of the people I see in my civil law practice undertake tort claims only after they have tried mightily to resolve the matter socially and administratively first. (The criminal defendants tend on the whole to be less resourceful in finding legal means to redress their problems.)

The idea that the decline of contract has led to the rise of tort does not resonate that much with me, though I'm sure there's some truth to it. It would mean more to me if we were talking about contract terms that were regulated. Residential leases are a good example. Lots of terms must be in or out of a lease for them to be valid, which has led to leases being very standard. I see regulation as having a high place in the heirarchy. When some activity creates a risk of harm, you regulate it, whether it's by making it unlawful for an individual to recklessly endanger another's safety with a firearm, or by forcing an industry to market only safer products and services using safer means to conduct their activities. Deregulation represents a choice on the part of government to give the subjects of regulated activities more freedom, leaving nonregulatory mechanisms to address the risk that they will do harm .

Generally, the right favors deregulation because it believes market mechanisms will be sufficient. For example, you start a business making cheap soap in your garage: you will have an incentive that the soap not injure or kill too many people too quickly or tracably, because word would get around, the market for your soap would dry up, and you would lose the income stream from tainted soap and probably go out of business. When you start again, you'll know better. If you don't learn, you'll keep going out of business and face a credit crunch. Hence the market disfavors manufacturers being careless or stupid.

Of course, stupid still happens. You can't deter stupid. There are also deterrents to crime and crime still happens. Most crimes are less vicious than stupid anyway. And our experiences with unregulated markets have also seen many victims. With only the market to protect them, victims would be left with nothing but the meager satisfaction that if they tell their stories and are believed, they can hurt the sales of the soap company. Hardly make whole relief for them. Same for crime victims, and even with tort law, the same fate meets prospective plaintiffs who cannot find a big pocket defendant. Every couple of months, the local news has a story about a local business that went under and left clients in a lurch. A great number of businesses are undrcapitalized, fail, and those with at least some customers relying on them cannot even sue, except to wait in line behind a series of creditors.

So regulate as much as reasonable. Then, have torts as a backup. Having torts as a backup acts as a pressure to self-regulate.

Of course, if you shred regulation and shred tort, what are people left with? Vigilanteism. While there are stories that pop up all the time in the news where some violence can be traced to a grievance that was legally unremediated (and the anger often diverted to some easier target), I think a good example is in divorce cases. Some people exit a relationship with such undigested anger that they do stupid and destructive things. The solution of last resort is to go after these people criminally, like all the deadbeat parents constantly being shamed on the local news, but I don't see this as really deterring anyone, and in most cases provides little relief to the victims. We need to look upstream for better solutions toward the love-justice rather than the justice-force end of the spectrum.