TorteDeForm

Lee Tilson

Tort Reform: Who is above the law?

There are many bad things that can be said about the Paula Jones lawsuit: it was a colossal distraction for our whole country, it was an abuse of the legal system, and it was a frivolous lawsuit. The case should have been adjourned until Clinton left office.

Despite many absurd aspects of the process, living in a country where a hairdresser can take the most powerful man in the world to court, file a suit, and have a snowball's chance in hell of winning should reassure all of us of an important principle:

"No one is above the law."


Is that principle really true in the United States? Who really believes it? Is it a good principle?

The evolving scandal involving Rep. Mark Foley brings this to mind. The full scope of the scandal has not yet unfolded. Were Rep. Mark Foley's actions limited to e-mails and instant messages? Were any Congressional aides physically abused? Were other children abused? Were other government officials involved? Should the victims have a tort remedy against Rep. Mark Foley?

Shortly after his resignation, we learn that some in the Republican House leadership knew of some inappropriate activity by Rep. Foley. What action did they take? Did they investigate? Did they look at his computer? Did they interview anyone? Did they talk with any of the Congressional pages? Did they hire an investigator?

And what did the leadership do to protect the public interest? Did they see any conflict, or at least the "appearance of impropriety" allowing Rep. Foley to continue to serve on a committee that addresses exactly the subject matter of the allegations against him? Did those who criticize consensual homosexual relationships so loudly see any problem with having enabled the circumstances of non-consensual homosexual abuse of young boys entrusted to them? What responsibility do they bear? Are they above the law?

Should the Republican leadership who failed to act be held accountable under tort law? The facts are not yet determined. We do not yet know, to paraphrase a former US Senator from the State of Tennessee: "What did the leadership know and when did they know it?" While we are determining the answer to that question, we can meaningfully ask what law applies.

If these Congressional pages were abused by Rep. Foley after the Republican leadership was advised and failed to act, should the leadership be held accountable under tort law?

Or should we extend the full benefits of tort reform to them?

Is the Republican leadership above the law? Some who advocate elimination of the tort system worked strenuously to use the tort system to distract our entire country while using Paula Jones as a pawn. They have not acknowledged the contradiction inherent in using the tort system they want to abolish for their own short term political ends when it is convenient.

So let us put the question to the tort reformers. No one, except of course, Bill Clinton, should be held accountable under the tort system. .

If the Speaker was negligent, and as a result young boys were sexually abused, should the Speaker be held accountable under the tort system?

For the moment, I am not interested in the facts of this case. I am interested in the general legal principle. Do child molesters at the highest levels of government who abuse their powers, and those who enable them, deserve the benefits of tort reform?

Lee Tilson: Author Bio | Other Posts
Posted at 10:25 AM, Oct 02, 2006 in
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Comments

So is this website ever going to publish an actual original critique of an actual reform proposal or reform argument, or is going to continue to restrict itself to imaginary reform proposals such as this one that exists solely in Lee Tilson's head?

Does it matter that Walter Olson criticized the Jones lawsuit at the time? Apparently not.

Posted by: Ted | October 2, 2006 11:02 AM

I've criticized the proposal to place caps on contingency fees. I've also criticized the proposal to place caps on noneconomic damages. Henry Greenspan criticized the immunity pharmaceuticals have in Michigan. I also criticized it in my TRIAL article. Others have criticized "loser pays," and I'm working on a critique of that abomination, too. Cyrus has criticized the workers' comp system "reforms." And I do believe Lee's piece criticizes sovereign immunity, which is a type of tort "reform."

Posted by: Justinian Lane | October 2, 2006 11:41 AM

Many provisions of the tort reform proposals might be implicated: caps on non-economic damages, restrictions on punitive damages to a single digit multiplier of the capped non economic damages, elimination of joint and several liability, limitations on attorneys fees that will restrict how much a plaintiff's lawyer can invest in the case.

These are but some of the tort reform proposals that are implicated.

Or is Ted now abandoning these tort reform proposals?

Posted by: Lee Tilson | October 2, 2006 12:12 PM

Tilson doesn't mention "sovereign immunity" in his post. Nor is "sovereign immunity" a reform: rather, it's a centuries-old legal principle that predates the tort system. Like the vast majority of posts here, it's attacking a straw-man.

Posted by: Ted | October 2, 2006 12:22 PM

Ted seriously,

Your comment is way out in left field. You won't even answer a direct question I posed to you about workers' comp.

Get real.

Posted by: Cyrus Dugger | October 2, 2006 12:33 PM

Ted Writes:
"Tilson doesn't mention "sovereign immunity" in his post. Nor is "sovereign immunity" a reform: rather, it's a centuries-old legal principle that predates tasking the tort system. Like the vast majority of posts here, it's attacking a straw-man.

Posted by: Ted | October 2, 2006 12:22 PM "

First you criticize me because you do not see how the tort reform issue was relevant to the Rep. Mark Foley incident.

I responded by showing exactly how it was relevant to the traditional tort reform goals: caps on non economic damages, unavailability of punitive damages, elimination of joint and several liability etc.

Now you make this response and accuse me of attacking a straw man?

Ted, do you think if a page was abused, that his damages should be capped? Should negligent members of congress be liable jointly and severally?

What do you think?

Posted by: lee tilson | October 2, 2006 2:29 PM

Ted, I'm sorry to have confused you. When I mentioned sovereign immunity, I was referring to the fact that several states have waived their sovereign immunity, which I consider to be real tort reform.


Considering the subject matter of this post - governmental officials acting in their official capacity - I thought that sovereign immunity was relevant. So here's another question for you to duck: Should tort reform protect child molesters from being sued by their victims?

Posted by: Justinian Lane | October 2, 2006 3:31 PM

Ted writes:

"So is this website ever going to publish an actual original critique of an actual reform proposal or reform argument, or is going to continue to restrict itself to imaginary reform proposals such as this one that exists solely in Lee Tilson's head?

Does it matter that Walter Olson criticized the Jones lawsuit at the time? Apparently not.

Posted by: Ted | October 2, 2006 11:02 AM ?"

It would matter if Walter Olson was the only person that could be described as a "tort reformer."

We could go through the Congressional Roll Call and see how many congresspersons support tort reform and supported Paula Jones's right to sue Clinton, in tort.

We could check the typical array of right wingers who support both tort reform and Paula's right to sue.

What about Sibel Edmonds' right to sue in tort?

Posted by: lee tilson | October 2, 2006 7:45 PM

Lee, my 12:22 comment was written before your 12:12 comment appeared, so please don't pretend I was responding to your 12:12 comment.

In any event, your 12:12 comment is disingenuous, since your post claimed that reformers were trying to keep people from suing a child molester, and none of the reforms in your 12:12 comment do any such thing.

Cyrus, your propensity for the non sequitur is noted.

Posted by: Ted | October 2, 2006 9:25 PM

Ted, I'm hopeful that my 3:31 comment had appeared before your 9:25 comment. Just in case it didn't, let me rephrase the question I asked.

Do you think that child molesters should be protected by damage caps and joint & several liability?

Posted by: Justinian Lane | October 2, 2006 10:39 PM

Ted writes:

Lee, my 12:22 comment was written before your 12:12 comment appeared, so please don't pretend I was responding to your 12:12 comment.

In any event, your 12:12 comment is disingenuous, since your post claimed that reformers were trying to keep people from suing a child molester, and none of the reforms in your 12:12 comment do any such thing.

Cyrus, your propensity for the non sequitur is noted.

Posted by: Ted | October 2, 2006 09:25 PM "

You are incorrect.

I did not address the intent of tort reformers with respect to victims of child abuse.

My question is whether the tort reforms should be applied to the detriment of victims of child abuse and the benefit of child abusers.

That was my question.

You have not answered that question.

Your claim that caps on noneconomic damages, abolishing joint and several liability, etc., and other tort reforms do not affect the victim's right to sue is simply incorrect.

As an attorney, I know that most victims cannot afford an hourly fee. Thus, in order for a victim to sue a tortfeasor, in this case, a child molesting tortfeasor, it has to be economical.

Tort reforms make it uneconomical to sue for torts where the only damages are non-economic.

If the cap is $350 K, then the defendants will force a trial. Why?

With caps on damages, there is no downside to trying the case. The case tries, and if the defendant loses, the defendant appeals. Automatically.

Every appeal, every trial, costs significant money.

So the defendants in these cases file Daubert motions to exclude all of plaintiff's experts, take all kinds of depositions driving up expenses, and making it impossible for an attorney to break even.

That is the purpose of tort reform, in part.

You will notice that all the tort reforms we have seen favor Defendants. All of them. At least all of them I have seen.

Why not cap the amount of attorney fees for the defense of malpractice cases? Why not cap the costs that can be expended to defend a malpractice case?

Why?

Simple reason: tort reform is for the benefit of defendants.

So yes, caps on damages, eliminating joint and several liability, restrictions on attorneys fees are designed for one reason.

They make such lawsuits cost more money than they generate.

What happens?

Any ideas?

Posted by: lee tilson | October 3, 2006 12:14 PM