What is rather ironic is that just as Ted and his peers would like to make the courthouse door as inaccessible as possible to the American people, they also make responding to their tort "reform" views on their own blogs as equally as inaccessible to those who hold a contrary view (although they do not hesitate to come over here to Tort Deform to respond to ours).
Unlike www.tortdeform.com Ted's think tank's blog, www.pointoflaw.com, doesn't even allow comments. Similarly, the Manhattan Institute's www.overlawyered.com (where Ted also comments) doesn't have a recent comments update list. As a result, responses to their posts get buried as the post scrolls down from the top of the screen.
Lastly, it may be a coincidence, but www.overlawyered.com just turned off their trackback function shortly after they began to comment on and trackback to this blog, making it harder still for our critique of their views to be read on overlawyered.com. They claim it is because of
“Following a long period in which we battled trackback spam, the entire trackback function just seemed to stop functioning a while back. Since it has been some months now since any legitimate trackback has registered, I've turned the whole function off rather than potentially mislead newcomers about its availability. Technorati remains the most convenient way of seeing whether we've been linked lately on other sites.” 9/20/2006
TortDeform.com launched publicly on 9/12/2006.
They have been around for a long time, so the timing seems rather "coincidental."
My guess is they were worried their readership might just start reading a contrary view if we linked back to us, so they pulled the plug on trackbacks.
I would track back their post it, but I’m not allowed, so the link is below.
http://www.overlawyered.com/2006/09/no_trackbacks.html

Cyrus, you keep asking for respectful debate, and boasting how you're above insults, and then you keep posting solipsistic conspiracy theories accusing Walter and I of sinister motives.

For the record,

1. Walter noted the problem with trackbacks on June 1. And Overlawyered has shut down trackbacks on multiple occasions while you were still in law school: there were no trackbacks for several years on the site before 2003; trackbacks were shut off occasionally on a post-by-post basis throughout 2004; we shut down trackbacks completely between July 2005 and October 2005.

2. I assure you as someone who underwent the Augean task of sifting through spam to find the occasional legitimate trackback that our decision to do so was in good faith. The spam trackbacks were so numerous that the legitimate trackbacks failed to get through even when we tracked back to ourselves. Between August 27 and September 18 we had one thousand, two hundred fifteen trackbacks that did not time out, and one thousand, two hundred fourteen of them were spam.

3. Overlawyered has nothing to do with the Manhattan Institute. It's Olson's personal blog.

4. If you want to donate money earmarked so that we can hire someone to maintain a comments board on Point of Law, we'd be happy to do so, though there are literally hundreds of more interesting projects such an employee could be put towards. In the meantime, nothing stops you from setting up a Google Group that does nothing but discuss Point of Law posts. Or, hey, you have a blog here where you could discuss the material, and another one run by DMI. You have yet to do so.

5. In a world with Bloglines and Technorati and Google Blogsearch, trackbacks are outdated horse-and-buggy technology: anyone who wants to find out a link to one of our stories will. The vast majority of people linking to our stories agree with them. In any event, you've linked to precisely one Overlawyered post in the two weeks of your blog, and you didn't even discuss that post. Your claim of addressing opposing views is contradicted by your posts on Katrina. So what precisely are you complaining about?

Dear Ted

I have found your comments interesting and of value to our debate here. You are not charged for your posts here. My assumption is that Cyrus thinks free speech and open debates like this one have value.

I have found your comments helpful in thinking through some issues. Our critics are generally our best friends.

However, the playing field is not level. The head of your organization, AEI, is reported to earn high six figures, according to some internet sources, and AEI itself has a budget of well in excess of $20 Million. I have no idea what kinds of revenues are generated by all of the related entities.

Why not just have an open contest of ideas?

It may be, as the Athenians discovered so long ago, that as beneficial as critics may be to society, listening to them is not always pleasant.

Why don't we just have an open contest of ideas here? I am not suggesting a free for all or personal attacks, but we put forth a position on an issue, and marshall our evidence.

What do you say?

Lee

"My guess is they were worried their readership might just start reading a contrary view if we linked back to us, so they pulled the plug on trackbacks."

Sure... that's why they've linked to you several times in the last week, even going to so far as to have a post devoted to it. Their continuing posting oyour links is why I came back here at all, after promising myself I wouldn't. Your personal attacks on them and their readers (such as myself), your inuendos that they are doing this for money (when they have already shown you that they took VERY large pay CUTS to do this), your ourgith lies (you KNOW they link to you, as you claim to read their blog).... Why do I bother? I guess I am just too stubbornly hopeful that you will actually live up to what you say (wanting dialogu and discussion?).

"You are not charged for your posts here."

Um... and anyone is at Overlawyered?

"Why not just have an open contest of ideas?...we put forth a position on an issue, and marshall our evidence."

Why yes, lets! I thought that's what we were doing, at least on this side: advancing idas, providing facts to back them up, etc. On this site, I find outright falsehoods repeated long after they have been exposed, both in public and to you directly.

I avoided coming back here the first several times Overlawyered linked to you (which they did because they don't want anyone to rad your stuff, right?), and now I remember the wisdom in that. I challenged some dishonesty in this thread post and thread, but it won't make a difference, so I will not do so in any more threads. Yes, I said that before, but "hope springs eternal", they say. I will quell it in the future.

Oh, one more thing you left out: the aspects you aaprently think are "key" in this case (skylight kid) are IRRLEVANT. The "key aspects" are as follows: the kid was trespassing, in an area students were completely forbidden from going in normal circumstances, anyway, and committing theft. I have no duty to warn someone about a danger in an area I forbid them from accessing.

Example: I create a room in my house that has needles pointing into th room from every wall, making that room rather dangerous. I lock my house and leave. You break into my house and injure yourself in my dangerous room. How, exactly, is that my fault, when I took pains to keep you away? Do I ned a sign IN MY OWN HOUSE warning about it?

An award in such a case would reward a crime or an infraction of trespassing if there was no intent to carry away the lamp. Compensating a tort taking place in a crime is against public policy in many states.

If the school had not settled, that argument could have been made at preliminary pleadings, at trial, and on appeal.

This case has ambiguity because the defendant settled an unjust claim and prevented the decision of a tribunal.

If a claim is unjust, it should be disputed. Even if the legal defense costs exceed the potential payout, prevailing prevents that subject matter from becoming a lawyer cottage industry. Expensive resistance is an investment in the prevention of future bogus claims.

Supremacy Claus makes a very valid point. If I sue someone for $1 million dollars for a made-up tort, and that persons settles with me, such a settlement has no relevance to the strengths or weaknesses of the tort system.

JL writes: "If I sue someone for $1 million dollars for a made-up tort, and that persons settles with me, such a settlement has no relevance to the strengths or weaknesses of the tort system."

JL is wrong, once again: if I sue someone for all of their assets for a made-up tort, and they settle with me for 5 cents on the dollar because it will cost them tens of millions of dollars to defend themselves and there's a small percentage chance the liability system will make a mistake and bankrupt them because the trial judge has made incorrect rulings that cannot be appealed before a judgment is entered, then that's a very real problem with the liability system. We're seeing this now with the deep-pocket investment banks who were blackmailed into paying billions of dollars over Enron and Worldcom.

"If I sue someone for $1 million dollars for a made-up tort, and that persons settles with me, such a settlement has no relevance to the strengths or weaknesses of the tort system."

Of course it does. A defendant doesn't settle a baseless lawsuit out of the goodness of her heart; she settles because she recognizes that, even though the suit is baseless, (a) it will cost her money to litigate, which our current laws will generally not allow her to recover from the plaintiff even if she wins, and (b) there is a chance that the plaintiff might recover even though the claim is baseless.

Ted and Dr. Caligari:

Both of you point out that there is a small chance that even a baseless claim will be rewarded by a judge or jury. Name me one reform that will prevent judges or juries from making a mistake.

There aren't any. The greatest fault with the civil justice system is that it's run by men. Men make mistakes. Sometimes that means plaintiffs win when they shouldn't. Other times it means defendants win when they shouldn't.

You're both mistaken if you think that altering the law can prevent the misapplication of the law.

You're responding to only half of what I (and Ted) said. The other reason defendants settle even frivolous cases is that it is often cheaper to pay something in settlement than to incur the expense of defending the case. Adopting the English Rule (loser pays the winner's attorneys' fes and court costs) would deter the filing of cases which are filed solely to take advantage of that kind of nuisance value.

I don't want to anger Ted. He is a good guy.

He will not express an opinion about ending the immunities of the lawyer hierarchy. I suspect, he is only angry about the victimization of his corporate sponsors. For example, I await his outrage over the death penalty being applied to 20% innocent people, with 25% of those having confessed. This is all after wasting $1 mil in legal fees on these incompetent lawyers and judges. This massive malfeasance threatens the integrity and reputation of the entire legal system.

Let torts do its work. Give torts a chance to fix our dangerous, out of control, careless legal system.

First, all lawyers should have statutory liability to adverse third parties. No one else has had the shield of contract privity as an obstable to accountability for 100 years. Second, for legal malpractice claims, end that "trial within a trial" arrangement. Have sraight tort doctrine apply to the careless lawyer.

Next, all judges should be forced to carry professional liability, with discounts for attending judge school for 2 years and 1 year of apprenticeship judging.

Judging is a separate profession from lawyering. It is a polar opposite. Anyone who has passed 1L should be precluded from all benches lifetime. No remediation is possible after that landmark of lawyer cult indoctrination. Judging is no more related to lawyering than architecture is to brick laying.

If the judge in the above corporate cases erred, and decisions were outside standards of prudent judge care, let his insurance company, and his employer compensate the innocent investment bankers to the tune of $trillions. I would be pitiless in taking down a judicial hellhole State. To deter. These are horrible people who deserve to put out fires with buckets after their fire engines have been sold to make the victims of their judicial carelessness whole.

If corruption is shown, such as accepting a cup of coffee from a plaintiff attorney, let this judge go to Federal prison.

Lastly, reverse Hans, the lawless decision giving States immunity from its own citizens, by Federal law.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=134&invol=1

The language of the 11th Amendment is crystal clear in prohibiting suits by the citizens of another state. Hans is an insult to the intelligence of anyone with a 6th grade reading ability.

It is the immunity of King George that justifies self-help against the lawyer profession, and the clueless, insurrectionist little caesars on the bench. I make no distinction between Scalia and Brennan. No substantive difference exists in their lawyer rent seeking agenda.

Torts will make judges and lawyers safer from the tsunami height wrath of the public, headed their ways.

Justinian abandons his original claim and unwittingly states my main justification for reform:

The greatest fault with the civil justice system is that it's run by men. Men make mistakes. Sometimes that means plaintiffs win when they shouldn't. Other times it means defendants win when they shouldn't.

Just so. And that's precisely why the civil justice system shouldn't resolve large-scale public-policy questions about product design or medical practice or warning labels or business judgment that it is poorly suited to handle and where mistakes are both exceedingly likely and exceedingly costly.

Name me one reform that will prevent judges or juries from making a mistake.

The Common Sense Consumption Act will prevent mistakes in a whole class of cases.

I've discussed the question of preventing judicial-system mistakes elsewhere.

"The Common Sense Consumption Act will prevent mistakes in a whole class of cases."

Oh really? Does it have some self-correction mechanism that prevents a judge from misapplying or misreading the act? No, it doesn't. You're using sarcasm to gloss over my point.

Are you actually saying that whether a doctor committed malpractice or a product was defective is a matter of public policy? Or do you mean the compensation for injuries so-caused should be?

I read your post, and you touch upon an idea I've kicked around myself: What if individuals purchased their own malpractice insurance policies before having surgery? I'd rather work with my own insurer, who has a duty of good faith to me, than have to go through all the trouble of filing a lawsuit. Your thoughts?

JL: Brilliant. First, you allow all my comments, unlike Ted. Then you come up with this reverse insurance idea. People are paying their cost anyway, why not get privity?

Victims of medical errors should get Medicaid. If the aim is to provide for their recovery, that would be enough, and efficient. If it is to keep the plaintiff bar in Gulfstream Jets, they should say that openly. The defense of victim is masking ideology insulting the average intelligence. They reject 90% of malpractice cases because the plaintiff is fat, or a smoker, or has tattoos, or is not otherwise cute, or uses foul language. It is not about the injury. It is about winning.

Present your idea to the plaintiff bar. If the death threats start to scare you, doctors should pay for the Kevlar and bodyguard.

Anyway, medmal is pretty dead. Surprising recent stats. In one county, of 11 trials, 11 verdicts favored the doctor. Last year, of 15 trials, 14 favored the doctor. The one favoring the plaintiff was for $56,000. What about defendant judicial hellholes, like the local big city? There, this year so far, 80% of verdicts favored the doctor. Medmal has become a voluntary charitable donation by the doctor, with other people's money. As judicial hellholes exist for defendants, they exist for plaintiffs.

Then a doctor asked, if the verdicts are so favorable, why are insurance premiums still so high?

Good question. Perhaps, Ted can answer.

What if individuals purchased their own malpractice insurance policies before having surgery? I'd rather work with my own insurer, who has a duty of good faith to me, than have to go through all the trouble of filing a lawsuit. Your thoughts?

I'm all for this; one of the main arguments of reformers is that the liability system should not function as an insurer, because it's a poor mechanism for providing that service. I note that the idea you (and a number of reformers) have proposed is not possible without legislative liability reform overruling court decisions that effectively prohibit such contractual arrangements.

Lastly, as to funding sources, which everbody should always question, I think a quick look at my bio makes clear that the only interest group I have ever "served" so to speak - is the public interest.

Cyrus is a recent graduate of NYU Law School. Before law school he was engaged in community development work for five summers as a volunteer, Project Supervisor, Assistant Project Director, and Project Director in Bolivia, the Dominican Republic, Mexico, and Honduras. In addition to his summertime work in Latin America, Cyrus spent a summer in Ghana performing research on matrilineal inheritance with Alliance International Research for Minority Scholars. Shortly after college he worked as a researcher at Massachusetts Voters for Fair Elections (a clean elections advocacy group) and as an intern at Political Research Associates (a research center dedicated to studying right wing movements). During law school Cyrus interned at Make the Road by Walking, the Socio-Economic Rights Project of the Community Law Center in Capetown, the NYU Center for Human Rights and Global Justice, the Center for Constitutional Rights, the NAACP Legal Defense and Educational Fund, the New York State Defenders Association's Immigrant Defense Project, and the American Civil Liberties Union's Human Rights Working Group. His law school extracurricular activities included serving as Co-Chair of the NYU Chapter of the National Lawyer's Guild (2004-2005), Education Chair of NYU's Law Students for Human Rights (2004-2005), MCC Representative of NYU BALSA (2004-2005), and Co-Chair of NYU's Public Interest Law Foundation (2005-2006). In his last year at NYU, Cyrus served as an Articles Selection Editor for the NYU Review of Law and Social Change (2005-2006) and was selected as the Arthur Garfield Hays Roger Baldwin Civil Rights & Human Rights Fellow (2005-2006).

What does your bio indicate Ted?

In any event, I think this conversation is great and I'd really like to know more about your think tank's funding sources.

The Drum Major Institute's are up on our website.

Let's compare.

JL: Brilliant (not sarcastic). First you allow all my comments, unlike some. Then you come up with this great idea of patients taking out their own insurance against surgical malpractice. Keep it even simpler. Victims of medical error get Medicaid to heal them as much as possible.

You should present your idea to the plaintiff bar, whom you support. Ted and I will gladly help you with research. At least, I will. Ted gets cranky when contradicted.

I think the docs would spring for the Kevlar and the bodyguards after your presentation.

All costs are passed on now. The patients are paying for malpractice plus a 10% cost on top of the entire health budget for defensive medicine. Few victims see a lawyer. Among those, 90% are turned away for being fat, or ugly, or smokin', or cussin', or a-pickin' their nose. I don't see how the current arrangement can get any cheaper, except by deterring bogus and poorly prepared claims.

The insurance aspect is an interesting idea, but it poses some problem when dealing with risk aversion and control. Of course in any surgery, there are factors and or events that both the doctor and patient cannot control. However, the only party with any control whatsoever is the doctor. I do not believe a risk averse insurance agency is going to want to insure a patient against not only good faith mistakes but also against the negligence or malfeasance of the doctor.

Of course, you can quickly remedy this problem in the terms of coverage, by limiting patient coverage to problems not directly attributable to malfeasance and/or negligence. However, this just leaves us where we started, and opens a whole new door to litigation against insurance carriers.
I like the system in Massachusetts. While I am not an expert, and cannot verify all of the details...I can give you a general view of what it takes to bring a med. mal case in Mass. For those of you more knowledgeable than I, please educate us regarding the details.
Before a complaint is filed, the plaintiff must already have an expert on board, willing to point out the failure to meet the standard of care. Second, the complaint and corresponding expert testimony must be brought before a review board who will allow the case to proceed or nip it in the bud.

The review board decision may be appealed, however, the decision on appeal is binding and final.

This plan 1) places a great deal of expense and preparation on the plaintiff, limiting frivoulous suits.
2) Forces the plaintiff to at least justify the claim on the merits rather than force a settlement to escape the costs of defending a meritless claim. And 3) allows a meritorious claim to proceed through the courts without offending traditional notions of tort liability, compensation for the victim, punishment for the wrongdoer, and deterence for other practitioners.

Is this, possibly, an adequate compromise?

Supremacy makes the saddest point of all with his kevlar joke; there is so much animosity between doctors and lawyers that a discussion between both sides is unlikely.