We had an okay class discussion about tort reform recently in Torts. (At this point in the semester I think we’re all too exhausted for a heated or animated debate on the topic.)
It amuses me that the words “tort reform” are always put in quotes in our casebook - and even in the way it is mentioned by our professor. As if that’s not really what people mean when they say reform or that they’re just parroting what a lobbyist told them to say.
I have a problem with the change reformers say we need - namely, in its most common expression, that a blanket cap on punitive damages applies to all cases will mitigate whatever negative effects large jury awards have on our economy. This rigidity fails to consider the merits of an individual’s case while, at the same time, negating the role of tort law in discouraging certain corporate and individual malfeasance. It also just feels like - though may not, in fact, be - a thinly veiled handout to bad corporate actors.
Yet, I’m a”tort reform” “supporter” purely because I think the legislature acts well within its authority to ask whether awards are too large and what effect this has on the economy and society. Awards can “shock the conscience” of lawmakers too. Like many things, however, it seems the negative inertia created by opposing lobbies - trial lawyers vs. business - makes it hard to get past the entrenched positions of the two parties.
Nonetheless, based on my extensive two class-meeting consideration of this issue, my initial thought - that I hope we discuss in the comments - is that we should make bad faith a more prominent element in torts cases, particularly strict and product liability cases.
