Kia Franklin

Pro-Business and Pro-Civil Justice? Say it ain’t so!

I just read two interesting opinion articles on the importance of our civil justice system. How, you may ask, is that any different from what I read every other day? Well, these articles were written from a market perspective. One is clearly more free-market, corporate oriented, and reveals a clear tendency of the author to be generally pro-tort “reform.” The other is written by a Stanford Business School prof whose politics are less obvious and appear more neutral.

Both authors look at the lack of robust government regulation of different product industries (food, drugs, consumer products, etc.). They see and articulate how lax governmental regulation makes access to the courts necessary as a good check against corporate wrongdoing. A sneak peak at the CNNMoney.com blog entry by Jeffrey Pfeffer:

Decades after Tylenol bottles were tampered with and Ford Pintos exploded, you’d think that product-safety panics would be nearing extinction.

No such luck. Consider just the past few months: Pet food laced with poison killed more than a dozen dogs and cats. Toothpaste shipped from China to Latin America turned out to be tainted with a potentially fatal thickening agent. And the FDA issued yet another recall for defective defibrillators, bringing the total number of heart devices that need to be replaced to nearly 200,000.

Here’s another frighteningly persistent trend: The drumbeat for weakening the ability of people to seek redress in court by curtailing product-liability suits continues unabated.

A recent study by the nonprofit Pacific Research Institute estimated that the cost of tort law in the United States had reached $865 billion, equivalent to an 8 percent tax on consumption or a 13 percent tax on wages. But much of that analysis leans on faulty logic, and while most of my friends in business consider lawyers at best a necessary nuisance, for the most part, they’re dead wrong. Keep Reading

The other opinion article, written by Steven Greenhut of the Orange County Register appeals to conservatives by stating why a Republican conservative activist who “accepted the gospel that… trial lawyers are bad” changed his mind after working as a plaintiff’s lawyer in sexual abuse cases. Also from the article:

In a case of injustice, or official negligence, or true corporate malfeasance, wouldn’t you prefer the freedom to contract with a trial lawyer and have your day in court than to rely on official channels – i.e., red-tape-laden regulatory agencies and uninterested district attorneys – to pursue justice?

I’ve written about people who have had their property taken by the government, or have had their rights unfairly trampled by police or deputies patrolling the jail. In none of those cases would justice have been done without civil lawsuits. Even with corporate matters, we know that companies might not fix serious and dangerous defects if there were severe caps on punitive damages.

From a free-market perspective, you have checks and balances through litigation or regulation. I’d prefer less of the latter, while keeping the former system functioning soundly.

Articles like these are good because they expand the dialogue about who should be invested in an accessible civil justice system. It does not only have to be the folks in the social justice community whose alliances are clearly oriented toward the average taxpayer, the “little guy”, the innocent victim, etc., who care about preserving access to the courts.

Now, I do have my critique, of Greenhut’s article in particular. I agree with Greenhut’s general assessment, that the court system provides important checks and balances against unregulated and under-regulated activity, and that it enforces companies’ implicit promise not to harm people. But then he inserts so many anti-litigation statements into his article that this main point might be easily lost.

For instance, he refers to the archaic McDonald’s spilled coffee case in a way that suggests the case was frivolous, although this tort “reform” take on the case has been thoroughly rebutted and discussed ad nauseam (for example, see here, here and here). And he describes activism through the courts as “abusive” even though we would still live by Jim Crow if it weren’t for such efforts. I don’t know, maybe Greenhut is trying to preserve his tort “reform” street-cred, or perhaps he is still moving along in his personal journey to civil justice consciousness.

But the fact that he can come, as he said, “to the painful conclusion that our current system is probably better than any likely alternative,” sheds a little more sunshine on the civil justice world, now doesn’t it?

Posted at 12:43 PM, Jul 10, 2007 in Permalink | Comments (0) | TrackBack (0)