TorteDeForm

Lee Tilson

Balancing Good and Bad: What Is Your Solution?

Debates over the tort system, such as the one hosted here, typically devolve into camps that focus a few aspects of the tort system. Supporters of the tort system focus on its virtuous aspects. Critics focus on its vicious aspects. Can we make any progress in this debate if we are always focusing on different things?

Can we all agree that there are some virtues of the tort system? Injured parties get their day in court, discovery sorts out good cases from bad cases, individuals are not barred from the courthouse because they are not wealthy, etc. To deny that the tort system had any virtues would be silly and unintelligent.

Can we all agree that there are some deficiencies of the tort system? Resolving a case uses resources (time and money), it does not do enough to prevent future harm, and being a party to a lawsuit can be unpleasant. To claim that the tort system was perfect and cannot be improved would be silly and unintelligent.

At present, I strongly favor the tort system primarily for the reasons that I believe Plato favored democracy: it was the least efficient form of government, and could therefore be restrained from doing too much evil. (OK, I take Plato's Statesman to be a better expression of Plato's later views than the Republic.)

May we encourage this discussion about the tort system in a constructive vein?

One of the virtues of the tort system is that it offers an incentive not to negligently harm others (even according to Klick, so it has to be true, right?). Many other mechanisms have been created to prevent injury, e.g . the FDA, state public health departments, NTSB, EPA, etc.

I view the tort system as a sort of societal backstop. The tort system kicks in, and becomes relevant when all the other societal mechanisms break down.

Can we have a discussion on what other ways exist to prevent injuries, what other incentives, what other mechanisms? Should the workers at Ground Zero have been exposed to the carcinogenic dust? Should they have been misinformed as to the risks? Should the schoolchildren have been similarly exposed?

Institutional conservatism is a good thing. Existing institutions ought to be preserved, all things considered, unless good reasons can be articulated for abolishing them, AND those advocating change propose a demonstrably better alternative.

So far, there has been no demonstration of a better alternative system.

Should we try to prevent events like unnecessarily and dishonestly exposing workers at Ground Zero and schoolchildren to carcinogenic dust?

Should we try to prevent medical errors?

Can the proponents of change demonstrate that their proposal will do a better job of preventing injuries?

The burden of proof is theirs.

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Posted at 9:53 AM, Oct 05, 2006 in
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