TorteDeForm

Cyrus Dugger

Drum Major Institute vs. American Enterprise Institute: Tort “Reform” Hypocrites

Drum Major Institute vs. American Enterprise Institute: Tort “Reform” Hypocrites

hyp‧o‧crite  [hip-uh-krit]
–noun

1. a person who pretends to have virtues, moral or religious beliefs, principles, etc., that he or she does not actually possess, esp. a person whose actions belie stated beliefs.

2. a person who feigns some desirable or publicly approved attitude, esp. one whose private life, opinions, or statements belie his or her public statements

Awhile back in response to my op-ed “Sue as I Say, Not as I Sue” criticizing Stephen Roberts (the head of the W. Virginia Chamber of Commerce) in the West Virginia Record for filing a lawsuit that the reforms he advocates for would have limited, Ted Frank (Director of the American Enterprise Institute’s Liability Project) wrote a post on overlawyered.com “A Thought on ‘Hypocrisy’ Allegations.” Justinian Lane responded to Frank on Tort Deform with “Principles, Profits, and Plastic Toolboxes” and Frank in turn responded to Justinian with “False accusations of "hypocrisy" II” along with the allegation that Justinian “demonstrates a fundamental lack of reading comprehension” (don’t worry Justinian I think that you’re a great reader).

Okay. Deep breathe. To keep this manageable for now I am only focusing this post on the arguments Frank makes in “A Thought on ‘Hypocrisy’ Allegations.

Here’s the introduction to the op-ed:

West Virginia Record Sue as I say, not as I sue by Cyrus Dugger -- In recent years, the courts of West Virginia have been a favorite target of the self-labeled tort "reform" movement.

In West Virginia, and across the nation, the U.S. Chamber of Commerce and state chambers are attempting to push forward what they term tort "reforms." These legislative initiatives limit, constrict, and sometimes eliminate Americans' ability to go to court when they are injured by others' misconduct…It is striking, however, how quickly those who advocate for tort "reform" are willing to change their tune. While they publicly "speak out" about how too many lawsuits are ruining a state's economy, or how lawsuits are somehow innately "bad," when they or somebody they love is injured, all of this public rhetoric goes out the window and they go straight to court. In short, these people are tort "reform" hypocrites. (link)

Is Roberts a Hypocrite?

Based on the above definition of the word “hypocrite” I think that it is clear that Roberts… is a hypocrite.

By publicly supporting caps on non-economic damages for West Virginia residents and criticizing those who sued for them, but then ultimately suing for these very same damages when his own daughter was injured, means that he:

“pretend[ed] to have virtues, moral or religious beliefs, principles, etc., that [he] does not actually possess” and “feign[ed] some desirable or publicly approved attitude, esp. one whose private life, opinions, or statements belie [his] public statements.”

Luckily for Roberts, he is not alone. Not only are there are a great deal of well know tort reform proponents who when injured chucked their public proclamations against lawsuits and filed suit, most everybody is also a hypocrite in their daily lives.

Based on my own progressive views, if I really practiced my beliefs through my actions, I couldn’t buy much of anything. Indeed, everyday my officemate reminds me that Starbucks doesn’t engage in fair trade with growers, but I still buy their coffee because sometimes I just need really good coffee… or a spicy pumpkin donut.

So since in theory I support a living wage and fair treatment of Latin American farmers, at least to a degree, I’m a hypocrite for going to Starbucks. Few people fully practice what they preach.

However, a big difference between Roberts and most people is that he is a public figure advocating in a public forum for a change of his state’s law. When you step up onto that podium to give a (at times moralistic) speech to the general public, in my view you lose much of the leeway we all have to be guilty of our own smaller everyday hypocrisies. People trying to pro-actively change policy as part of their job are different than those who have beliefs, but do not lecture or advocate to the public on what they should or should not do.

The Larger Point That Frank Misses

The point that Frank misses is that, at least according to tort “reformers,” the lawsuits they oppose hurt American businesses and the national economy. Whether or not the “rules” allow these suits or limit them, according to tort “reformers,” whenever they are filed, they are an injury to commerce.

Frank makes the argument that until the rules of the game are changed, even those who oppose the current rules should still make sure that they benefit from them.

His analogy is the filing of refunds for state taxes. He argues that he may advocate for a change in tax law that he feels is more economically efficient, but until the law changes, he’s going to keep on taking advantage of the law he opposes (either on moral or policy grounds, or both).

Here the injury that Ted discusses is the unfair subsidies that some get under the current tax regime, based on different levels of state taxation and their interplay with federal taxation (I‘m no tax wiz so let’s try and keep subsequent discussion from a critique of my understanding of tax law and policy…either way this seems to be the jist of Frank’s point).

If Frank supports a change in tax law, but still files and gains from filing under the current rules, who is he hurting? He’s certainly hurting the idea of a tax system that treats state residents the same (although one might argue if similar treatment of all Americans for taxes is really the concern we may want to eliminate a lot of tax loopholes for the rich, let alone corporations) by at least contributing to that inequality a little bit more than it would otherwise have been. Arguably the people being hurt are people in states that help subsidize other states. If Frank’s concern is not just the theoretical unfairness of the current tax scheme, but the harm it inflicts on others’ pocketbooks, he shouldn’t take his deduction.

But maybe, it really doesn’t lessen the harm to others by not filing. Again, I’m not an expert on tax policy, let alone filing (given many years of student public interest pay living) but let’s assume for the moment, as Frank states, that it doesn’t.

In contrast, tort reformers argue that the lawsuits they hope to restrict or eliminate hurt businesses.

Unlike Frank’s tax analogy, by bringing a lawsuit they are inflicting a harm (as they see it) on American business. If tort “reformers’ stance is that there are too many lawsuits, and that each lawsuit they would otherwise prohibit or severely limit is an injury, by filing his suit Roberts is creating the very injury he warns against, it’s just that he can do so legally. If he really believed that the type of lawsuit he seeks to restrict or eliminate cause injury, whether it is legal to do so or not, he shouldn’t cause this “injury.”

Going Forward

An interesting question is if Roberts is not a hypocrite, will he still support a cap on non-economic damages while his own suit for non-economic damages is pending? Before this case goes to trial I’d like to get on the record what Richards thinks “out of proportion” would be for his own daughter’s injuries before he accepts any non-economic damages. This pledge would mean that he will return the amount above that which he agrees is “out of proportion” to the defendants he accuses of causing these injuries. If he isn’t willing to make this statement and pledge, then according to the Chamber he is hurting West Virginia businesses, and is not fit to be head of the West Virginia Chamber of Commerce.

Just as Senator Trent Lott’s experience with the insurance industry turned him into a crusader, let’s at least hope that we can have some good come out of a horrible and saddening injury - transforming Roberts as well.

Only time will tell.

Cyrus Dugger: Author Bio | Other Posts
Posted at 11:43 AM, Dec 15, 2006 in
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Comments

Thanks for the vote of confidence, Cyrus.

Might I take this time to reiterate my challenge to Mr. Roberts?

"Define the "standard formula" that should be used to compensate your daughter.

Issue a press release that you will neither seek nor accept any settlement or jury verdict which results in your daughter receiving compensation higher than the "standard formula" would award her."

Posted by: Justinian Lane | December 15, 2006 2:39 PM

Interesting post. It seems to me that Roberts was an advocate on behalf of businesses; in your article, you noted that he sought to improve conditions for employers.

How does a personal injury law suit against individuals contradict that sentiment? I would call it hypocritical if he sued the manufacturer or retailer of the paint ball gun, but he didn't do that. He is suing his neighbor for their entrustment of the weapon to a child, their negligent supervision, and the negligence of the child who injured his daughter.

Posted by: John | December 15, 2006 5:32 PM

There are a couple of points that your question raises.

The first is that this injury or accident happened in connection to a business it would fall squarely within the focus of the Chamber of Commerce tort “reform” movement narrative about injured victims. So just change the facts to have this accident be connected in some way to a business and the point made in the post is ay its strongest.

The second is that Roberts is also suing the owner of the property rented to the parents of the child. While in this case I believe that the tenants and owner are related, they need not have been, and according to Robert’s organization this suit would be hurting landlords, and renting properties is a business. Moreover, one might attempt to make a similar argument for third party liability if the owner of the property were a commercial/business owner in a public space or some other context. I’m not opposing or supporting the third party liability suit against the landowner (different debate and reasonable minds can disagree), but in a different case, the type of suit here would have the effect that Roberts alleges is not good for business, i.e. the ability to be sued and potential legal liability.

Tort “reformers” focus on businesses because that is the group they are most directly associated with, but I think that many would say that non-economic damage awards are a “waste” and hurt the economy more indirectly by depriving everyday Americans of their money - and as they argue randomly disbursing it through so called “jackpot justice.” They often argue that tort law generally put a so called “tort tax” on all Americans and that the process of litigation is inefficient and victims get little back, thereby wasting the money and resources of society. (of course I contest this perspective, but a different debate).

Roberts actually was engaged in negotiations with an insurance company to pay for his damages held by one of the defendants. He felt that the insurance party withheld coverage of his daughter’s injuries in bad faith and then was kept from suing that company because of one of the reforms he helped pass in West Virginia.

Moreover, it is not as if the tort “reform” legislation limiting non-economic damages Roberts argues for make a distinction between suits against businesses and those not engaged in economic activity at the time of the incident like the one in this case appears to be. They say they should be eliminated or severely restricted generally - for everybody in all instances.

An interesting question that your point raises is maybe they should just approve tort “reforms” limiting damages when you sue a corporation or something related to some sort of business like activity.

If their immediate and most urgent concern is liability for businesses, then why not limit the restrictions on liability only in regards to corporations because those are the suits the Chamber of Commerce focuses the most on, and is organized to protect.

Then again, that idea makes you ask yourself why should we privilege corporate/business related liability over purely human non-business activities. It also makes you wonder when the Chamber advocates that these restrictions apply to everybody that they do so only because they feel that they have to…. Given that they are a lobby for businesses and not all of America.

Are corporations entitled to more protection than humans, and if so why. I might argue that it should be the other way around.

Interesting question… would love to continue it on Monday… as it’s 7:05 on Friday and I’m still at work. ; )

Posted by: Cyrus Dugger | December 15, 2006 7:07 PM

John, if you read the piece I authored, you'll see why Roberts is a hypocrite. Or rather, I assume he is. All he has to do is issue the press release I describe and I will write a piece praising him for his integrity.

Posted by: Justinian Lane | December 15, 2006 7:20 PM

As a civilian, I see this dispute as one between vipers. No matters who prevails, the bite is on the public.

Posted by: Supremacy Claus | December 17, 2006 11:24 AM