Policy Forum No. 7: Disciples on the Docket: A Christian Response to Tort Reform

When somone has caused harm to another, it is right that he or she rectify the situation. In many cases, the rectification comes without appeal to any other authority. The two parties simply work things out and reconcile. In other circumstances, the parties are unable to come to agreement and, following the mandate of Christ in Matthew 18, look to a mediator to restore peace. They might, for instance, turn to a friend, a family member, or a pastor to help resolve the situation. In any of these cases, at least partial forgiveness and hopefully complete forgiveness is likely to be included in the resolution. The goal is the restoration of both parties.

Some disputes, of course, require involvement of the courts. Ideally, this is the last resort. Suits seeking reparations or damages for a wrong suffered at the hands of another are called tort suits. Tort laws provide an opportunity for finding resolution in difficult situations so that people do not take justice into their own hands. In this context, disagreements can be adjudicated with set rules and by neutral parties and so serve the common good.

Over the past several decades in the United States, tort law has undergone significant changes that, in practice, seriously diminish the opportunity to find resolution and justice. The modern American tort system encourages lawsuits designed to maximize recovery for the plaintiff, regardless of the culpability of the wrongdoer. It encourages litigation at the expense of forgiveness and understanding. It ignores the role that family members, friends, religious leaders, and others can play in bringing about reconciliation.

In addition, the cost to society as a whole is significant. Products are more expensive and unemployment rates are higher. American businesses have certainly been put at a competitive disadvantage in the international market. Increased exposure to tort liability has also had a substantial impact on the medical system, dramatically increasing costs and limiting access to medical care in some locations.

The impact of these costs is a concern to religious leaders for several reasons. The effect is greatest on the poor of our country who are also the most vulnerable. While those in medium and higher income brackets can afford more expensive basic necessities like food, clothing, and shelter, the cost to those in lower income brackets can be overwhelming.

The damage, however, is not limited to the economic realm. There is a moral consequence for a society that becomes furiously litigious. As tort law evolves and expands, it separates responsibility for the harm from the obligation to make the victim whole. Instead of restoration or reconciliation, the goal becomes winning the suit, no matter on which side we find ourselves. A reluctance to seek forgiveness develops. Hesitancy to apologize grows as the fear of being sued expands. Who would offer an apology only to have it turned into a weapon against them in court? Furthermore, who would accept an apology and extend forgiveness if it might be used by an opponent before a judge and jury? The net result of these developments is more distrust between members of the society, less human understanding, and damage to the common good.

Lawmakers and the general public have taken note of much of the harm an overly litigious tort system causes. Many state and federal legislators are exploring different ways to counteract the problems brought about by the distortion of the tort system. Too often, however, the forces behind these efforts for reform focus solely on economic matters. They are unaware of the damage the tort system is doing to our communities and to us as individuals. If reform is to be effective and best serve the common good, people of faith must become involved in the debate and advance these considerations. Failure to do so may result in a legal system that continues to work against our communities and civil society.

Churches and those who lead them also face significant exposure to tort laws through the conditions of their premises, church-related activities they sponsor, or the actions of their staff members or leadership councils. A report from Church Mutual, an insurance company specializing in covering churches, states the following:

Of course, all of this is good advice when considered from the perspective of a church pastor or parish priest who does not want to see someone injured. But that is not the focus of Church Mutual. Instead, it places churches in a defensive posture, more concerned with exposure to law suits than with the care of people.

II. Torts and Justice

Law has a dual nature: It shapes behavior, and it reflects societal values. Legal rules not only outline that which is acceptable, but they also help form the views and opinions of members of the society. Perhaps no other area of law influences behavior and sways attitudes more compellingly than does tort law. It “shapes the way we relate to each other both in public and in private.”² In recent decades, however, this doctrine has undergone significant revision. In the process, the community-affirming message that it has traditionally put forth has changed in a way that must concern all those who truly care about society and the people in it.

How it Works

A tort is a type of legal action in which an injured part (the plaintiff) sues the alleged wrongdoer (the defendant) for the harm suffered. A tort suit may be based upon an intentional or unintentional act. The normal remedy is to order the defendant to correct the harm. In the American legal system, this usually means paying monetary damages so as to make the plaintiff whole. This legal expression means that it is required that the plaintiff be restored to the same position he would have been in had the injury not occurred. Unlike a crime, in which the criminal is held responsible for the harm caused to society, with a tort, the defendant is held responsible to a harmed individual. Thus, traditional tort law does not punish the offender. Rather it attempts to direct the defendant toward rendering the plaintiff whole.

When a tort lawsuit is based upon intentional conduct, there is little question about the justification for holding the defendant responsible for making the plaintiff whole. Such lawsuits are neither hard to understand, nor are they controversial. When the facts are clear, one would even hope that the defendant, under the compulsion of basic fairness, would admit liability and satisfy the injured party without resort to legal action. People in a healthy community need to be willing to admit when they have wronged another and willing to take responsibility to restore that person.

In cases where a person’s actions have unintentionally injured another, liability is usually based on negligence theory. The traditional formula for negligence requires proof that the defendant had a responsibility to the plaintiff; the defendant breached that responsibility; the plaintiff suffered a foreseeable injury; and the breach of responsibility was the proximate cause of the injury. The law does not require the defendant to be completely without fault, but that she behave as a reasonably prudent person would do in the same or similar circumstances.

Even when the defendant has intentionally done something wrong to the plaintiff, the traditional rule is that a court will not award damages unless the plaintiff can establish that he or she has suffered some actual harm. Awards are limited to measurable damages actually suffered.

Tort law also traditionally required the plaintiff to establish that the defendant was responsible for the harm before the court would order the defendant to pay damages. The plaintiff had to establish two facts: first, both that the injury would not have occurred if it had not been for the defendant’s conduct; and second, that the plaintiff’s injury came about as part of the natural and continuous sequence, unbroken by any intervening cause, from the defendant’s act. Stated differently, the plaintiff’s action (or failure to act when there was a duty to do so) had to have been the foreseeable cause of the plaintiff’s injury or the defendant would not be held liable.

A Christian Understanding of Justice

Traditional tort law fits well with Christian teaching about justice, on which much of it based. Many of the societal laws of the Pentateuch address situations in which one person’s actions cause damage to another. In some cases, specific remedies are also commanded with the intention of restoring the person or person’s property which was harmed (Exodus 22). The Old Testament Scriptures also acknowledge that intention matters. Those whose intentions were evil are more harshly judged than those whose intentions were good but whose action or inaction caused harm (Exodus 21:33–34; 22:13).

What happens when harm is done, intentionally or unintentionally, because of the actions of another? Where is justice to be found? The words of Christ in Matthew 18 teaches us that problems are best addressed by the individuals directly affected by them. As much as possible, the matter is to be resolved between the two parties. If they are incapable of resolving their problems, then the social institutions closest to them would be the next best suited to assist. The State as the social institution most removed from the individual must be considered as a last resort. This is not to say there is no role for the state; it is only that the state is the final adjudicator.

One expression of this teaching applied to social thought is called the doctrine of subsidiarity, according to which

The doctrine of subsidiarity recognizes that the individual will not always be able to perform for himself, but where that is true, the individual should be assisted not by the State, but by a mediate association, such as a family, church, school, or some other social organization. Above all, the assistance should come from the meditating association closest to the individuals affected by the problem, with less involved, more detached associations only used when absolutely necessary. Jesus’ words in Matthew 5:25–26 add a prudential warning to solving issues at a local level: “Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison. I tell you the truth, you will not get out until you have paid the last penny.”

III. Modern Developments in Tort Law

Throughout most of the twentieth century, the American tort law system advanced the cause of justice as described above. Over the past forty years, however, tort law has undergone several significant changes. The cumulative impact of all of these changes results in a significant threat to justice and the structure of civil society.

Proving Harm

No party should be required to pay to correct harms that he or she did not cause. The problem, however, is that it can be extremely difficult for the plaintiff to prove causation. Sometimes the difficulty lies in uncovering facts; other times there is a problem due to lack of scientific knowledge. This is especially true of certain environmental and chemical exposure cases, in which symptoms may not develop for a long time.

The difficulty of establishing causation in modern environmental exposure cases is illustrated in the case Miller v. National Cabinet Co.⁴ This was a lawsuit brought by the widow of a cabinet maker who had died from leukemia. Mrs. Miller was convinced that exposure to benzene had caused her husband’s leukemia, and she wanted the Benz Oil company to pay for her loss. Unfortunately for her, Mrs. Miller could not prove causation. Her first problem, as noted by the court, was that in order to win, Mrs. Miller had to prove that benzene could cause leukemia. Today we know there is a causal relationship between leukemia and exposure to benzene, but in 1960, at the time this case was decided, there was insufficient evidence of any such association. As a result, Mrs. Miller could not win her case.

Additionally, causation requirements at the time of the case required that she prove more than that benzene might or could cause leukemia. She also had to prove more specifically that benzene did, in fact, cause her husband’s leukemia. Could there have been other causes? Did leukemia, for example, run in his family? Might people randomly develop leukemia? All these issues would have had to be examined.

Causation is even more complicated still. Even if Mrs. Miller had proved that her late husband’s leukemia was caused by exposure to benzene, she would not be able to recover damages from Benz Oil unless she could show that the leukemia was caused by that brand of benzene. Mr. Miller had worked in the cabinet-making business for many years, and he presumably used many different brands of benzene over those years. According to traditional tort doctrine, it would be unfair to hold Benz Oil responsible if the disease was actually caused by exposure to a different brand of benzene.

In light of the problems in establishing causation and to help plaintiffs like Mrs. Miller, many courts relaxed traditional causation requirements. The old standard was that plaintiffs had to prove that exposure to some product could lead to harm. American courts today, however, tend to neglect the enforcement of this standard. They base their decisions on far less-than-conclusive scientific evidence.⁵ The intent is to lessen the harsh results in cases like the one brought by Mrs. Miller.

Unfortunately, what too often occurs today is that defendants who were not really at fault end up being held responsible for someone else’s bad conduct. In the worst of scenarios, defendants who are not at fault are forced to defend themselves at a significant cost despite the unsubstantiated charges raised against them. Because so much money is at stake in such cases, people who had little or nothing to do with the injury or loss are named in suits to expand the possibility of greater financial benefit.

Some courts will permit recovery for conduct that has not yet caused harm to the plaintiff but has increased the risk of harm in the future.⁶ Thus, if exposure to a chemical makes it more likely that a person will one day develop cancer, a court may permit recovery for that increased risk but not for actual harm done. Other courts permit recovery for the plaintiff’s fear of what might happen in the future due to the exposure.⁷ After all, the reasoning goes, the exposed plaintiff will certainly worry about matters that he might not have worried about if not for the exposure.

Another important development related to causation is the emergence of market share or enterprise liability. The problem that Mrs. Miller had in proving that Benz Oil was the brand of benzene that caused her husband’s leukemia illustrates the market share of enterprise liability. Courts often impose this type of liability when: (1) the product at issue was manufactured by one of a small number of defendants in an industry; (2) the defendants all knew about the risks inherent in the product; (3) they failed to take steps to reduce this risk; and (4) most, if not all, of the manufacturers are joined as defendants. In such cases, liability can be apportioned, so that each defendant pays a percentage equal to the percentage of the market that it controls.

Although market share liability does not necessarily link the responsible defendant to the correct injured plaintiff, it seems fair to hold all similarly situated defendants liable if the product at issue has actually caused harm. The primary concern about this evolution in tort law is the role it has played in the development of large class action lawsuits and in a general lessening of causation requirements.

What most dramatically illustrates the impact of lessened causation requirements is strict product liability. Under this doctrine, the defendant is held strictly liable for physical damage to a consumer or bystander or their property if harm was caused by a defective product manufactured by the defendant. The problem is that the principal criterion is whether the plaintiff was harmed, not whether the product made by the defendant was defective or if the defect contributed to the plaintiff’s injury. A manufacturer that exercised the highest level of care can still be found liable. In other words, traditional causation need not even be established.

This encourages consumers to see the court not as a place for justice, but as a place to get (or avoid paying) money. Rather than responsibility, chance is presented as the primary factor in which

Some trial attorneys have taken note of this and have used it to their clients’ advantage:

The relaxed causation requirements for lawsuits have encouraged the characterization of tort law as frivolous in the American popular culture. According to one observation, “Lawyers today are like gamblers … they take on lawsuit, after lawsuit, after lawsuit until eventually they find a jury wacky enough to award money.”¹⁰ With these results, the lessening of causation requirements certainly does not serve the common good. Real justice for injured people is stifled. Courts are logjammed with frivolous cases where the concern is far more about getting a huge settlement than it is about finding justice, seeking reconciliation, or restoring wholeness.

What is a Trial Lawyer?

In one sense, the term trial lawyer can applyto any attorney who specializes in litigation as opposed to those who specialize in providing corporate, probate, tax, or any other business advice. When discussing tort abuse and proposed tort reform, however, the term trial lawyer—like the term plaintiff’s attorney—refers to the attorneys who represent plaintiffs, while those on the other side are referred to as defense lawyers.

Many attorneys are good people who take the demands of justice seriously and see their calling as a way to serve their clients, communities, and nations. However, as is to be expected, some trial attorneys have responded to the lessened causation requirements by trying to take an unfair advantage. They have developed new and creative claims to support large, class action lawsuits that would have been unthinkable a generation earlier.

Class action lawsuits are enticing because they are incredibly profitable. Teams of plaintiff attorneys, sometimes numbering in the hundreds, combine assets, recruit clients, coordinate legalstrategy, and ultimately share in a significant percentage of the damages awarded. With numerous plaintiffs joined in a single case, they can bring enough market pressure on the defendant to force a settlement even when liability may not actually be present. For instance, if there is a limited number of plaintiffs who actually suffered harm due to the defendant’s product, but there are numerous others who were exposed to it, the class action format gives the plaintiff attorneys grounds to argue that all plaintiffs should be compensated.

Rather than going to trial, the defendant may agree to an out-of-court settlement in which he commits to pay a limited amount to all plaintiffs because it will be cheaper than a full trial with the possibility of an expensive loss. The result, of course, can be that the truly injured parties receive smaller awards than they would otherwise have received, and other plaintiffs who were not harmed receive unwarranted awards. The defendant ends up paying money that cannot be used for other purposes, like developing new products or hiring more workers. The attorneys are compensated either way.¹¹

Furthermore, the matter of attorney compensation deserves some consideration. The American legal system requires the parties for each side to pay for their own attorney. Since many plaintiffs have insufficient assets to hire an attorney at an hourly rate, plaintiffs’ attorneys usually work on a contingency fee basis, getting paid only if there is settlement or a favorable judgment. Such a method helps plaintiffs who might not otherwise be able to afford an attorney.¹² Many attorneys, however, are only interested in bringing contingency cases when the financial equation makes sense. In other words, the damages have to be significant. If a plaintiff has suffered real, but limited damages, it increases the difficulty on finding an attorney willing to take the case. It would be better for that attorney to take a chance on a weaker case that had the possibility for a larger award even if it were weaker on its merits than a strong case with a lower potential return on the investment of time and effort.

Thus, the system encourages plaintiffs to bring questionable claims when there is a potential for a large damages award, but it discourages meritorious cases that do not hold out the promise of a large award. In England, Canada, Australia, and virtually every other common law jurisdiction except for the United States, the losing side pays the attorneys’ fees for both parties. The advantage of such a practice is that it creates a disincentive for bringing frivolous lawsuits, and it encourages quick settlement when the claim has merit.

Moreover, contingency fees give plaintiff attorneys a financial incentive to maximize the award, regardless of whether the plaintiff’s injury could be satisfied with a much smaller amount. There is also an incentive for plaintiff attorneys to prolong litigation. For example, the contingency fee contract often increases the percentage the attorney will receive if settlement takes place after trial commences.¹³ Perhaps more importantly, the plaintiff’s attorney knows that the defendant will be paying the defense attorney an hourly rate. As time goes by and the bill mounts, the defendant will feel more and more pressure to settle so as to limit costs.

When a legal system encourages questionable cases due to the possibility of a large award, discourages meritorious claims that do not hold out the hope of a large award, exacerbates the level of damages, and delays justice, it does not advance the common good.

How Much Is Enough?

In recent decades, the size of awards in tort cases has dramatically increased, as has the number of large awards. They have, in fact, expanded beyond the amount that would justly compensate the injured plaintiff. This is a fundamental change to tort law, and it raises serious questions about the message the legal system is sending.

Pain and Suffering

Much of the controversy regarding the modern American tort system targets the subject matter of non-pecuniary damages such as pain and suffering. In addition, punitive damages have become a much more significant portion of tort suit with the goal of not only restoring the injured party, but also of punishing the one who caused the injury. These non-pecuniary damages account for more than 90 percent of the total amount awarded in any given year.¹⁴ Trial lawyers argue that the tort system has protected American consumers for centuries, but most of that time non-economic damages were an insignificant consideration.

Punitive or exemplary damages deserve special attention. These damages are a type of award in which an amount of money is calculated above and beyond the amount that would compensate the injured party. A punitive damages award is designed to deter bad conduct by the defendant in the future, as well as that of others who may surrender to the same bad conduct in the absence of such deterrence.

Unfortunately, punitive damages usually fail to approach the just end for which they are intended. For instance, insurance covers most actions that lie at the heart of tort suits. Thus, it is rarely the defendant who directly pays the awarded damages. Instead, insurance companies become the de facto defendants.

Moreover, since punitive damages are designed to deter future conduct, plaintiffs are usually permitted to discover and report evidence of the defendant’s wealth to the jury. Thus, a suit filed against a wealthy individual or corporation can result in a substantially larger award than would be expected from a smaller, less wealthy defendant that engaged in exactly the same conduct. This unequal treatment among defendants based solely on their financial status violates the tenets of justice.

In recent decades, there has been a significant increase in the size of punitive damage awards, growing from $13,896 in 1970 to $466,346 in 1990.¹⁵ Those who defend the current tort system argue that appellate courts review punitive awards, and they are often reduced on appeal. Reliance on appellate courts is not, however, an adequate solution. It only leads to haphazard application, which prevents the awards from doing what they are intended to do.

Damages for pain and suffering can also have an adverse effect on the principles of justice. Based on verdicts from the past few decades, these damages regularly amount to about three times the economic loss in any given injury.¹⁶ That value encourages plaintiffs to develop evidence of pain and suffering. The United States Congressional Joint Economic Committee found that the additional damages did not reach the actual injured plaintiffs. Rather, “to a substantial extent, such damages have developed and increased in awards as a way to pay the huge contingency fees of plaintiffs’ attorneys. In other words, to make sure victims receive the full amount that would compensate them for the concretely measurable damages suffered, courts in effect add on pain and suffering damages as the lawyers’ compensation.”¹⁷ At the same time, plaintiffs and insurance claimants, as might be expected, try to make up for the attorney fees, in part, by inflating medical damages and seeking more pain and suffering damages.

Blameless Co-conspirators

Under the rule of joint and several liability, if two or more defendants are responsible for the damage, they can each be held responsible for the full amount of the damages. It does not matter that the defendants did not act in concert, or that neither’s conduct by itself would have caused the injury. Joint and several liability was originally premised upon the idea of holding co conspirators each liable for all the damage they caused. When there is coordinated, intentional conduct by a group of people, the doctrine makes much sense.

The doctrine today, however, is applied to allow tort victims to recover damages from defendants who are in no way connected or equally responsible, but who are merely wealthy or insured. This has had serious ramifications in some areas of the law. For example, any polluter who contributes to the contamination of a hazardous waste site can be held entirely accountable for the full cost of cleanup under the federal Superfund rule. Naturally, then, defendants spend a great deal of time and effort on finding other defendants with whom they might share the burden of defense. This leads to defendants whose contribution to the alleged harm is negligible, but who will be held potentially responsible for very significant awards. The end result is that some objectively blameless defendants are held responsible for the wrongdoing of others.

IV. Tort Law and the Impact on Society

It is undeniable that the American tort law system, despite its imperfections, has been a vehicle of justice. Nonetheless, we are witnessing the distortion of the system to the benefit of a few and the harm of many. Such abuses are carving a rift in the moral terrain of the American culture. It is time for people of faith to think seriously about the effects of modern tort law on our culture and begin to consider some ways in which it might be reformed.

The Economic Impact

There are, of course, economic effects that must be considered in the overall matter of tort law.

Cost to Consumers

Studies estimate that the American tort law system costs upwards of $152 billion per year or some 2.2 percent of the American GNP.¹⁸ It is not just large, publicly traded corporations that bear these costs. Tort law abuse is also bad for consumers. A few people win enormous amounts of money in settlements or judgments, but the costs are spread to the rest of us. We pay higher prices due to the risk that manufacturers pass on to consumers, the majority of whom will almost certainly be made worse off, and low-income consumers unambiguously so. By increasing the cost of insurance, widespread and unpredictable tort liability increases the price and decreases the general availability of insurance. The end result of expansive tort law is harm to those it purports to help.¹⁹

Tort law abuse can also profoundly influence the labor market and availability of jobs. Legal exposure and the costs associated with it in the United States makes shifting jobs overseas more attractive because of lower legal exposure in other countries.

What about protecting consumers from harm resulting from irresponsibly manufactured products? Some may argue that expanded tort liability serves the common good by holding corporations accountable and this, no doubt, is true in some instances. But the best protection against bad business is a free economy that rewards excellence and service and punishes poor quality and dangerous products. As one legal scholar has written:

Health Care and Legal Protection

The expansion of the tort law liability and the progressively increasing tort law abuses have had perhaps their most deleterious impact on the medical profession. Huge awards in medical malpractice suits have, for example, significantly driven up the cost of medical services, interfered with doctor-patient relationships, and made it more difficult for many Americans to obtain good health care. According to a 2002 survey, more than three-fourths (76 percent) of American physicians believe that malpractice litigation has hurt their ability to provide quality care. Nearly all physicians and hospital administrators believe that unnecessary or excessive care is provided because of fear of litigation. Specifically, doctors order more tests, refer more patients to specialists, do more invasive testing (like biopsies), and prescribe more medications (especially antibiotics) than they normally would because of fear of litigation. In fact, there is “nearly unanimous agreement among physicians, nurses and hospital administrators that these extra tests, referrals and procedures contribute in a significant way to health care costs issues.”²¹ Such extras are not related to providing better care for patients. Instead, the focus of the caregivers has shifted from patient care to legal protection.

The circle is vicious. Doctors are concerned about being sued, so they order and perform more tests and procedures that are viewed as unnecessary from a medical perspective. Because exposure is high and their insurer is the one who will be paying any judgment against the health care provider, the cost of insurance has skyrocketed. The size of damages awards in medical malpractice cases has grown so rapidly that medical malpractice insurance rates increased from 30 percent to as much as 75 percent between 2000 and 2002.²² In some regions, insurance companies have been reluctant to sell malpractice insurance, regardless of the price doctors might be willing to pay.²³ Many doctors, particularly those whose areas of specialization are considered to be high risk in the insurance sphere, such as obstetricians, have taken early retirement.²⁴ This situation has had a direct impact on the quality of health care in the United States today.²⁵

Another concern relates to prescription drugs. It takes years for drugs to be developed, researched, and approved by the Federal Drug Administration. Once on the market, there is always a possibility that new problems will be discovered and litigation will follow. It is inevitable, then, that pharmaceutical companies have to build these potential costs into the price structure of their drugs as a preventive measure, even if they have not yet been affected. The outcome even more deleterious to health care is that a pharmaceutical company may decide not to bring the drug to the market.²⁶ Consider, for instance, the 2004 flu vaccine shortage. It was due, in significant part, to several manufacturers stopping production, leaving the market overly dependant on only two producers. Such states of affairs make it difficult for people in need to afford their medications. We must also recognize that insofar as prescription drugs may qualify as benefits provided either by insurance policies or governmental programs, such a provision inevitably will result in either higher premiums or higher taxes to finance the governmental expenditures in public prescription programs.

Tort law, as we have seen, has had a serious impact on the health care system. This situation has given rise to many calls for politicians to consider the need for reform. In 2002, an editorial of The Washington Post read, “As to the right to sue, our preference is to keep the practice of medicine as far from the courts and the predatory instincts of some of the trial bar as possible … the threat of lawsuits should not be what governs health care in this country.”²⁷ It is clear that no one wants to see injured people denied their day in court, but when the legal system begins to hinder the ability of average Americans to obtain health care, it hurts the common good and needs to be reformed.

The Moral Question

The current tort law system has had a negative moral impact on communities and individuals. Unfortunately, this moral impact is not often discussed in the debate over tort reform.

The Impact on Community

In a litigious society, people have to be cautious about their legal exposure. Lawyers advise clients to be silent. Those causing harm are told to admit nothing. Those who were harmed are told to forgive nothing. In fact, in our current setting, the person harmed and the person who caused the harm are instructed to refrain from even speaking to one another. Given the climate, this may be good legal advice in that it limits exposure, but legal considerations win out over human dignity. Litigation becomes the conduit through which people relate to one another. Reconciliation is no longer a central concern.

Great harm is done to the value of forgiveness, which is crucial in maintaining a peaceful society.

When Chief Justice Warren Burger addressed the American Bar Association at its 1982 convention, he noted the failure of litigation to truly resolve human conflict. “Isn’t there a better way?”²⁹ he asked. As he explained, the “result [of a trial]is often drained of much of its value because ofthe time lapse, the expense, and the emotional stress.”³⁰ In the end, relationships are weakened, families may be at odds, and communities are not what they were.

Consider the following actual case. A young driver backs into a parked car. Knowing that he is morally and legally responsible, the driver leaves a note on the windshield of the damaged car. The driver and the owner of the parked car agree to resolve the matter of damages privately. The owner of the damaged car obtains an estimate on the cost of repair, and the driver, acting responsibly, pays for the repair. The car is repaired, both parties behave in a moral way, and the community is affirmed. The cost to society is low. There is no legal confrontation. The situation is kept out of a court docket that is already overloaded, making room for more serious matters.

Let us consider another possible option for resolving the matter of damages. On the one hand, the owner of the damaged car actually might have received more compensation if he had pursued litigation. There is no question that he invested time and effort to obtain the estimate. In addition, he was precluded from using his car while it was being repaired. A trial lawyer might have been able to obtain compensation for these additional inconveniences.

On the other hand, if such litigation had been contemplated, the young driver might not have admitted liability. At the very least, his attorney would have demanded verifiable evidence concerning how and where the plaintiff’s car was parked. The motivation for such a request is to discover evidence that suggests that the plaintiff or some other third party contributed to the outcome. Was the parked car, for example, too close to the young driver’s car? Was the lot properly designed? Was the car damaged before the accident took place?

If the parties had demanded a formal trial, there would have been more delay, more expense, and less civility. Fortunately, in simple automobile accident cases with no injuries, traditional causation rules apply and there is usually no opportunity for punitive damages, no pain and suffering, and no deep pocket. Thus, there is little incentive to demand litigation. In fact, had the parties not handled the matter of damages themselves, a different mediating institution—such as an insurance company—would have resolved the matter.

A properly operating tort system encourages acceptance of responsibility. Those who have been harmed know that the legal system is there to assure that they will be compensated, and those who have committed the harm know that society ultimately will not let them avoid responsibility. This awareness encourages potential litigants to resolve disputes justly and privately. The wrongdoer is encouraged to do what is right, and the person who has suffered harm is encouraged to be understanding and accept the apology and any associated inconvenience. Parties frequently resolve disputes without resorting to the courts.

Unfortunately, the current tort system discourages this kind of behavior. In medical care, the personal interaction that should exist between a doctor and a patient is mired by the threat of litigation. And doctors are not inclined to admit wrongdoing as might be otherwise expected. Moreover, patients tend to doubt a doctor’s true intent. Owing to a perverse tort system that might give an unharmed plaintiff a huge award, doctors are especially guarded in their communications with patients, while patients assume that doctors are motivated by law and not by compassion. Rather than following the natural human inclination to help those who have been harmed, the present-day tort law system presents incentives for people to seek litigation. It seems that people today think of courtrooms as the only source of justice.

This perspective violates the principle of subsidiarity, which calls for justice to be sought at the lowest level possible, beginning with the two people or parties involved. Acceptance of responsibility by the wrongdoer and forgiveness by the person who was harmed are forms of charitable conduct essential to a just society because they affirm the dignity and intrinsic value of the person. The presence of responsibility and forgiveness in human interactions are supported by a tort system that serves as a default mechanism designed to reassure citizens that those who are responsible, and only those who truly are responsible, will be forced to restore the victim should they not willingly do so. A just and organized society does not, however, force those who are not culpable of the damages claimed by a plaintiff to pay for the recovery of such damages even if they did not result from their actions. Similarly, a just society does not force those who are culpable to pay excessive amounts.

When the tort law system stops encouraging people to behave justly; when it causes injured people to seek a financial windfall; when it provokes wrongdoers to deny responsibility and look for excuses; when it impels people to doubt the motivations of others, then such a tort law system does not serve the civil society but rather acts as a corrosive force against it.

A Nation of Victims

The American legal system has traditionally operated on the assumption that people make choices and are responsible for those choices. Justice Benjamin Cardozo, writing for the Supreme Court in 1937, explained that the American legal system is “guided by a robust common sense which assumes the freedom of will as a working hypothesis in the solution of its problems.”³¹ The Court later reaffirmed this proposition by stating that a “belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil” is a proposition that is “universal and persistent in mature systems of law.”³²

A legal system that is functioning properly will hold a person responsible when he, “as a free agent, has exercised his choice in such a way as to make the punishment a necessary consequence.”³³ As such, holding wrongdoers responsible for making the plaintiff whole (even punishing them in the case of intentional wrongdoing) is “the systematic moral response to wrongdoing.”³⁴ This is how society reinforces the integrity of the person thus promoting the good and restraining evil.

When a properly functioning tort law system promises to hold individuals responsible for their actions, intentional or not, it reaffirms the importance of the individual and encourages people to take responsibility for their own actions. In these functions, the law is a clear benefit to society.

The contrary view of human behavior, that we are not responsible for our choices, has a devastating impact on the society. Namely, neither accountability nor punishment could ever be assigned because,

Obviously, society cannot function if people are not willing to take responsibility or, in the alternative, if the society is unwilling to hold them responsible. Unfortunately, most of the recent developments in tort law theory—particularly those developments related to causation—have moved away from the concepts of personal responsibility.

In the modern tort law system, plaintiffs advance their legal position by presenting themselves as victims. Individuals today are given a financial incentive to embrace the victim’s role even when they are not genuine victims. When police arrive at the scene of a bus or train accident, for example, one of the first things they have to do is to secure the area, lest false “victims” pretend to be injured so they can recover in a lawsuit.³⁶ Defendants, too, often claim that matters beyond their control led to the event at the heart of the litigation.³⁷ As a result, the United States is becoming what author Catherine Crier calls “a nation of victims.”³⁸

To summarize, when the tort system functions properly, it encourages those who have done harm to assume responsibility for their actions. It also reassures those who have been harmed that they will be made whole. To a community as a whole, such a tort system serves the common good and reflects true Christian justice. To the individual, such a tort system encourages his personal responsibility and social harmony in his relations to others.

As the tort law system has evolved over the past several decades, however, it has moved away from the concept of personal responsibility. Courts lowered barriers to litigation, dismantled immunities, lessened causation requirements, and increased monetary awards. These developments have transformed the legal landscape and the message that the tort system carries. “Recent developments in Tort can be understood as … a shift from moral to amoral Tort law; from a body of law assisting private ordering to a court ordered public policy.”³⁹

Reforming The Tort System

The goal of tort reform should be to return to a system based on fault and causation that places blame on those who caused the damage and restores the plaintiff without punishing those who happen to be wealthy. Restored to this form, the tort law system would not only deal with economic and health care concerns, but it would also affirm the value of the community and the individuals within that community. This must be the goal of the tort reform measures that are certain to come.⁴⁰ Unfortunately, while many vested interests are trying to influence the tort reform debate because of the money involved, the more significant moral position is badly in need of advocates. Men and women of faith, good will, and compassion who are guided by right reason need to come forward and give voice to these moral concerns. Only if that happens will tort reform be able to best serve the common good.

Politics and Prophets

Since 1986, at least forty-five states and the District of Columbia have recognized the need to place some limitation on plaintiffs’ tort rights and remedies.⁴¹ Perhaps the most common proposal is the imposition of a limitation on punitive damages, but there are others.

Some states have raised the burden of proof from preponderance of the evidence to the clear and convincing evidence standard in order to justify punitive damages. A few states have limited multiple punitive damages in mass tort cases. Others have placed boundaries on the size of punitive damages, limiting the award to a given ratio of compensatory damages.⁴² A few states automatically allocate a portion of any punitive damages award to state funds instead of permitting the plaintiff keep the entire award. Three states have adopted judge-assessed punitive damages measures. Some states placed limits on joint and several liability as the result of tort abuses.

Although many reforms have already been enacted, they have been compared to “Band-Aids plastered onto a festering wound.”⁴³ This suggests that there is a clear need for more reform of the tort law system. In the 2004 presidential election campaigns, candidates from both of the major parties—including Democratic vice-presidential nominee John Edwards, who is a trial attorney himself—spoke openly of the need for tort reform. During this election, two states passed voter initiatives designed to reform tort law.⁴⁴ The only problem is that the focus has all been on the impactthe tort system has had on business competitiveness and health care.⁴⁵ There are however, non-economic, moral impacts that merit serious concern. The debate ought not to be focused on the financial implications alone.

Christians and their religious leaders need to be both informed about the changes being considered by legislators and involved in informing legislators of the significant moral issues concerned. Church leaders should be playing their prophetic role in the midst of this political debate. The lives of their parishioners are affected, their ability to produce effective ministry is at stake, and the moral fiber of our nation is in question.

Religious leaders ought to be making their views known, especially as they relate to a complete and biblically informed understanding of justice. This may take the form of writing letters to legislators and newspaper editorial boards, drafting articles, or simply spending time discussing the issues involved in tort reform with local political leaders. Religious leaders are usually fairly adept at speaking truth into the public square. Tort reform is in dire need of a moral conversation to be included alongside the technical and economic aspects of implementing necessary changes to tort law.

Pastoral Considerations—A Call to Justice

Some of the best pastoral care is done from the pulpit in which God’s truths are proclaimed. Effective and timely preaching is not simply declaration into a vacuum. It shapes and forms the moral character of those who hear it. Religious leaders need to make plain the truths of Scripture regarding justice and fairness. They need to proclaim the message that reconciliation is always better than litigation, even when there exists a potentially large payoff. The message of personal responsibility must be a hallmark of the church’s proclamation. Those who injure others must be called to put right what they have done.

Reconciliation has a deep and profound meaning in Christian thinking. The offending party is called to display humility and admit wrongdoing. No hiding. No casting off blame. It means seeking forgiveness and reconciliation. It means acknowledging what we have done and, to the best of our ability, restoring the person we harmed. This is not easy nor, especially in serious cases, does it come naturally to us. It requires effort for which we need God’s grace.

The second part of reconciliation involves the person who has been hurt. Paul’s command is to forgive as the Lord has forgiven us. Christ’s prayer teaches us to enter into the presence of God asking that our trespasses be forgiven even as we forgive the trespasses of one another. These are not easy commands. For some, the yoke will be hard and the burden will be heavy. But the call of the Gospel is to forgive extravagantly. It is to forgive with all our hearts. It is forgiveness that is aimed, ultimately, at the restoration of ourselves, the one who has hurt us, and the relationship between us.

Sometimes this can happen simply between two people, the one hurt and the one causing the pain. In some cases, the other mediating relationships in our lives must become involved, beginning with our family members and moving out to friends, the church, and our community. In extreme cases in which all of these relationships have become involved and there is no resolution, the courts need be become involved to provide a fair and impartial legal structure that will conclude the matter. But always, this ought to be the option of last resort rather than our first response. Our faith calls us to higher standards and the future of a civil and functional society rests on it.

Notes

References

Books and Articles

American Tort Reform Association, “Tort Reform Record,” December 31, 2003, http://www.atra.org/show/7343.

Bernstein, David E., “Procedural Tort Reform: Lessons from Other Nations,” Regulation, The Cato Review of Business & Government 19:1, (1996): . http://wwwcato.org/pubs/regulation/reg19nle.html.

Buzzard, Lynn, With Liberty and Justice: A Look at Civil Law and the Christian. Wheaton, Ill.: Victor Books, 1984.

Churchill, Martha A., “Environmental Fear and the Courts,” The Wall Street Journal, May 26, 1993.

Common Good, Fear of Litigation Study, The Impact on Medicine Final Report, Study no. 15780 (11 April 2002), http://cgood.org/assets/attachments/57.pdf.

White House Council of Economic Advisors, Who Pays for Tort Liability Claims? An Economic Analysis of the U.S. Tort Liability System (April 2002).

Crier, Catherine, The Case Against Lawyers: How Lawyers, Politicians, and Bureaucrats Have Turned the Law into an International Instrument of Tyranny—and What We as Citizens Have to Do About It. New York: Broadway Books, 2002.

Kelley, Patrick J. “Tort Reform,” in Natural Law and Contemporary Public Policy, ed. by David F. Forte. Washington, D.C.: Georgetown University Press, 1998.

Krauss, Michael I., “Tort Law, Moral Accountability, and Efficiency: Reflections on the Current Crisis,” Journal of Markets & Morality 2, no. 1 (Spring 1999): 114–24, http://www.acton.org/publicat/m_and_m/1999_spr/krauss.html.

Lipkin, Robert J., “The Moral Good Theory of Punishment,” 40 (1998): 17–82.

Martin, Maureen, “Guest Opinion: Is the Legal System Killing Health Care? In Illinois, the Answer is ‘Yes’,” The Illinois Leader, 30 March 30 2004.

O’Connell, Jeffrey. The Lawsuit Lottery: Only the Lawyers Win. New York: Free Press, 1979.

Peck, Robert S. “ATLA’s law firm takes ‘reform’ to the courts.” Trial, July 2004.

Percelay, James, Whiplash: America’s Most Frivolous Lawsuits. Kansas City, Mo.: Andrews McMeel Publishing, 2000.

Pincoffs, Edmund L., The Rationale of Legal Punishment. New York: Humanities Press, 1966.

Prosser, William L., Handbook of the Law of Torts. West Publishing, 3d ed., 1964.

Rychlak, Ronald J. and John M. Czarnetzky, “The International Criminal Court and the Question of Subsidiarity,” Third World Legal Studies (2000–2003): 115–39.

Rychlak, Ronald J. and Julie Jarrell, “Compulsive Gambling as a Criminal Defense,” Gaming Law Rev 4 (2000): 333–38.

Rychlak, Ronald J. and Joseph F. Rychlak, “Mental Health Experts on Trial: Free Will and Determinism in the Courtroom,” West Virginia Law Review 100 (1997): 193–242.

Shuman, Daniel W., “Making the World a Better Place Through Tort Law? Through the Therapeutic Looking Glass,” New York Law School Journal of Human Rights 10 (1993): 739.

Stanek, Steve, “Hopes for malpractice liability reform on life support,” The Illinois Leader, 1 June 2004.

United States Congress, Joint Economic Committee, Improving the American Legal System: The Economic Benefits of Tort Reform. Joint Economic Committee Study (March 1996), http://www.house.gov/jec/tort/tort/tort.htm.

Weinberg, Neil & David Fisher, “Dirty Money: How Lawyers and Politicians Profit from the Class-Action Racket,” Fortune, 30 September 2004: 150.

Zywicki, Todd J., Public Choice and Tort Reform, Law and Economics Working Paper series no. 00 36 (Arlington, Va.: George Mason University School of Law, 2000).

Case Law

Miller v. National Cabinet Co., 8 N.Y.2d 277, 204 N.Y.S.2d 129, 168 N.E.2d 811 (1960).

Executive Summary