Asymmetrical Information

I think we had this discussion before. If a baker's storefront window is broken, and the baker files a lawsuit against the paving company which made available the stone which was tossed thru the window by the hoodlum...

...a cultural shift which has convinced parents that if their baby drowns in a bucket, the bucket manufacturer is somehow at fault for failing to warn them that this could happen.

The rest of your reasons I see as neither good nor bad, but this factor is far too close to reality.

I think it may be a chicken-and-egg problem: Does a lawsuit-happy culture discourage personal responsibility (by making proving the "fault" of others both accessible and lucrative?), or did a lack of personal responsibility encourage more lawsuits?

Personally, I'm glad they're so easy to get and to win, sad that they're so common. I get the feeling that most malpractice suits arise from patients failing to understand the imprecision of medicine, or how far gone their loved one really was.

On the other hand, I'm not sure the wrong-leg-amputation cases deserve anything less than an eye for an eye. More reasonably, it's not an innocent mistake, and I want it to be/stay possible to sue that doctor until he's uninsurable (i.e., sue him out of a job). No matter how rare such greivous errors are, when one happens, the courts need to be available and, frankly, the sky should be the limit.

It's also because American trusts decentralized, organic decision-making more than any other country. America's tort system is laize faire policy generation.

a cultural shift which has convinced parents that if their baby drowns in a bucket, the bucket manufacturer is somehow at fault for failing to warn them that this could happen.

I wonder what the real numbers are on this. I know the impression most people has is that if anything bad happens, people's natural reflex is to sue. It might be true, but I presume that to some large degree, bad things happen without anyone getting sued.

Geoghegan's proposition is testable.

How - well, there are several examples of American industries that remained highly regulated and unionized even as the the larger economy changed. The airline inudstry, and public education come to mind. Also there are firm-level variables that could be tested - Walmart grocery employees are mot unionized, but most established grocery chains are. And Southwest is famously under-unionized compaired to its established competitors.

Rates of lawsuits, awards & outcomes are easily, if labouriously, tallied and results can be compared.

I suspect Geoghegan's not done any of that and that this is just another "every body does what they want to do and not what I want them to do" screed. And that his anger comes not because, as he says "justice is now a function of party politics" but that he just doesn't like the party that's been winning lately.

You ask, "So why are lawsuits increasing?"

Have they been? I'm only familiar in depth with the data for medical malpractice suits, and contrary to conventional wisdom, neither the numbers nor the payouts have been increasing over the past couple of decades. (Yes, this includes both settlements and court awards.)

So I have to be at least skeptical at the notion that lawsuits overall have been exploding in recent years. We certainly have more lawsuits than Europe does, and it's possible that they've been increasing a lot, but I'd like to see some evidence on that score.

I think the fact that we are increasingly living in an artificial world drives an increase in lawsuits.

In the past people used to be routinely injured and killed by "acts of god" i.e. bad weather, disease, animals etc. Now days, when a person dies, especially if they die young, they are likely to die from a technology involved accident. Somebody made the tech involved an a rational can be constructed for how it is the manufactures fault the injury occurred. Even disease is often viewed as artificial. Many people in the general population believe that the majority of cancers come from man-made sources like industrial chemicals or that heart disease is caused by the mass marketing of high fat foods.

If every death has an human cause then the responsibility for the death can be assigned to some human entity.

The original (Kevin Drum) post is provocative, but I think it makes a tricky mistake right around here:

There are drawbacks to this model, but it does result in relatively few lawsuits. Conversely, in the United States, business-friendly conservatives have fought to keep regulation light. This often leaves lawsuits, which are inevitably less predictable and more arbitrary than regulation, as the only avenue that ordinary citizens have for checking corporate abuse.

Lawsuits are brought by individual citizens, yes? So in some sense, the regulatory regime is irrelevant to numbers of lawsuits -- people sue on the basis of what they seek to accomplish as the result of that individual suit. Maybe it's true as a second order effect -- if the country specifically decides to couple tort and regulatory law, they might give individual citizens more rights to sue. But I think Jane is correct to specifically look at the origins of the tort laws themselves, rather than assuming that some perceived social need simply wills them into existence with the ineffably correct properties. In this case, (based only on what I've read in the discussion) the actual history of the laws concerned doesn't support a deliberate coupling of the two regimes, so I've got my doubts.

One area where I think the general thesis would be correct is in the realm of environmental regulation/environmental lawsuits. From my reading on the matter and a few conversations with people in the industry, I believe that the industry as a whole treats nuclear power as being de facto banned, even though it's legal under our current regulatory scheme, because current law allows opponents of a new nuclear plant to delay construction indefinitely with strategic lawsuits. A similar de facto ban exists for petroleum refineries -- no new refinery has been built in the US since 1976, and that's not because of (government) regulation.

Kevin, I believe I've read that lawsuits are increasing.

But if lawsuits aren't increasing, that rather bolsters my case; if there hasn't been a secular increase in lawsuits since the deregulation of the late 1970's and early 1980's, then the culprit is hardly likely to be our regulatory system.

Lawyers' fees are strictly regulated in most of Europe. Also, there are no punitive damages in Europe. You have to prove the actual harm done.

But if lawsuits aren't increasing, that rather bolsters my case; if there hasn't been a secular increase in lawsuits since the deregulation of the late 1970's and early 1980's, then the culprit is hardly likely to be our regulatory system.

Heads I win, tails you lose?

Sorry - I get your point, but that's not a terribly convincing counterpoint.

And Southwest is famously under-unionized compaired to its established competitors.

Quite the opposite, actually; Southwest Airlines is one of the most unionized carriers in the industry. (While now-bankrupt Delta has always been mostly non-union)

When these people write about all these "corporate" abuses, do they just mean "business," or do they actually mean the corporate form of business organzation? I'm just wondering if this is because of ignorance, or because such screeds need to conform to a standard lefty socialist vocabulary.
It gets annoying

Anyway, as I recall from my civil procedure days, the number of federal lawsuits filed exploded in the 60s and 70s and continued increasing until the late 90s, when it stabilized around the present level of 250,000 to 280,000 filings a year. The trend was the same in California, the nation's largest judicial system. There's no dispute that the number of civil actions initiated has grown far faster than population for most of the past 40 years. I don't know what the trend has been for particular types of claims.

I do know that the trend of increasing litigiousness has not been limited to torts. Commercial litigation -- that is, between businesses -- was not a major practice area as recently as the 60s. Back then, the attitude was that companies didn't sue each other. They just didn't, because it was unbecoming behavior and "respectable people" didn't sue. A company with a few breach of contract actions ongoing against other companies might find that other companies "just can't do business with people like that." Commercial litigation has nothing to do with Geohegan's thesis, but it's part of the same trend.

By the way, this is what the publisher says about the book:

It's an enduring axiom of political science: before there is democracy, there is the rule of law. The pillars of the American legal system, however, are falling apart. And so too, argues Thomas Geoghegan, is America's democracy. The Law in Shambles explains how the 2000 presidential election was only the first sign that justice is now a function of party politics. Geoghegan notes how even lawyers are losing a sense of how the system works. And wait, there's more. The death of contract; the rise of tort; the loss of public space; uncharitable charities; dumbed-down juries; these are yet more signs of the law in shambles.

I especially enjoyed the fourth sentence. I'm not going to play the blame game, but this looks a bit too much like making hypotheses to fit conclusions.

Class action suits are newly allowable in the UK courts.

Worse luck.

While I think the culture has the most to do with our lawsuits. I would kill for a loser pays law.

The author suggests that government action for things like "setting nurse to patient ratios" would reduce the incidence of problems resulting in lawsuits.

How about those French people who died a couple of summers ago as a result of being left in overheated conditions? Should France have had an "air conditioning BTU to patient ratio" requirement?

There is no conceiveable set of rules that can account for all continencies in advance.

And what litigation resulted from the referenced incident? It would be interesting to look at specifics like this as part of any serious attempt at cross-country comparisons of tort law.

Peter Huber, in his 1988 book, "Liability: The Legal Revolution and Its Consequences," argues that legal scholars in the 1950s and after ("the Founders," Huber calls them) pushed for an expansion of tort law for dealing with "bad outcomes" in business and medicine. Where contracts used to govern safety expectations with commercial goods and services, tort law gradually took over (leading to the "explosion of lawsuits" mentioned in an earlier comment). The shift started reasonably enough, as consumers came to expect cars and medicines not to kill them. Or came to expect at least to be warned that cars (or ultralights today) and medicines were likely to kill them.

I have't found books updating the arguments in Huber's book. Similar books with striking free-market arguments seem to be rewritten and republished every few years with similar titles. Huber moved on to many other topics, I guess. Walter Olson's "The Rule of Lawyers" continues this theme, as do posts on overlawyered.com

If anyone can recommend recent publications with market-oriented medical malpractice law reforms, please let me know (GRehmke@aol.com). This is the current national homeschool debate topic and a few thousand highly motivated high-school age students are researching and debating it. (I hold economic education workshops for these students around the country).

--Greg Rehmke

"Is it the result of our lax regulatory system, or the decline of unionisation?"

I just don't think that assertion bears much examination.

There has been more not less regulation since the 1950's when the no-fault revolution began. OSHA, ERISA, NTSHA, are just examples. The courts have not rolled back or trimmed tort liability in recognition of the presence of these agencies.

On a related side note, one formerly was able to buy bruised/damaged apples from the supermarket at a steep discount, simply by asking for them.. These usually required heavy sorting/cleaning/paring, but were a good source of cheap fruit for applesauce.

Not any more. Someone got scared. Thanks very much, lawsuit culture.

I used to work at a fruit stand. We sold spotted tomatoes at a heavy discount for salsas and canning (in fact, enough steady customers wanted the spotted tomatoes that we occasionally had to use very broad definitions of spotted, just to keep them happy).

The economics of a fruit stand are actually pretty interesting. The source of the fruit is the same as the supermarket, so all of the value added is in knowing what fruit is best when (supermarkets are indifferent), and managing the ripening process/dealing with spoilage.

Separating good fruit from bad is in general quite people-intensive, and quite heavy on the disposal facilities. We were always careful to be as nice as we could to the local trash men for that reason -- a stand runs on its garbage bin. Growers and shippers get around this by shipping the fruit in an unripe state, and counting on the natural process of ripening occurring on the consumer's shelf rather than their own. Supermarkets try to do this, too (another large benefit of this is that the supermarket then gets paid full price for all the fruit, rather than only that fraction which would be unspoiled when the consumer buys it.) So the supermarket has a strong incentive to have as little overall spoiled fruit as it possibly can, since that increases yield and decreases the work of sorting.

All of which is an indirect way of wondering whether the decreased supply of spoiled fruit isn't in some sense the result of better inventory management by the supermarket, rather than fears of lawsuits. Or, heck, maybe they just throw the spoiled fruit away. Or maybe somebody in the store sees the spoiled fruit as a benny of the job, and is corralling it all before you get a chance.

"I'm only familiar in depth with the data for medical malpractice suits, and contrary to conventional wisdom, neither the numbers nor the payouts have been increasing over the past couple of decades. (Yes, this includes both settlements and court awards.)"

I'm still concerned about the high cost of defending against a claim not being reflected in a low settlement. It is non-trivial money if you spend $2,000 settling a wrongful death claim (pretty much a go-away it obviously wasn't my fault but I'm not going to trial and spending $100,000 doing it settlement) if you still have to spend $30,000 in discovery to get to the point where the plaintiff is likely to believe you really weren't at fault. If you look at settlements, five of those looks like $10,000. If you look at total costs defending against stupid lawsuits, five of those is $160,000. For a small/medium company that kind of expenditure can be crushing.

Part of the problem is that for a plaintiff in your average injury claim, adding an additional defendant has a very low marginal cost. It may take many weeks of work to sue just one defendant. But adding another defendant to a suit you are already doing costs very few extra hours. You are already doing the suit, so why not add 40 or 50 tangentially related defendants? Each of them will be obligated to pay the full cost of defending a suit (a cost a little bit less than you suing in the first place) while you are just spending a couple of extra hours adding their names to the complaint, tweaking some interrogatories and attending a few depositions. This significant cost can be reduced by giving a nominal settlement. When a company does that, they spend some thousands in the early discovery phase, prove to you that they probably aren't at fault and then throw you a few thousand in "go away" settlements. If one of the companies is a stickler (and willing to pay $50,000-$100,000 to go to trial rather than settle with you for $2,000-$10,000) you just suddenly discover that they really aren't at fault and dismiss them from the case. So say you have 2 or 3 good targets and 20-50 marginal targets. You are going to spend time and money going after the main three anyway. Each of the remaining ones is almost nothing added to your cost as a percentage of the whole. Each of them can be a couple thousand dollars for almost no additional work. Why wouldn't you sue all the marginal players?

In short, the big drain on the economy doesn't come from a lawsuit that is totally frivolous. It comes from a lawsuit that has a point against someone, but is frivolous against most of the defendants. That lawsuit that is frivolous against anyone won't get picked up because there is no upside for the plaintiff's attorney unless he gets lucky. But if he has a good case against someone, it is economically desirable (from the plaintiff's point of view) to bring what is effectively a frivolous suit against a huge number of defendants.

Do those countries with higher regulation and fewer lawsuits also have a rule that companies aren't at fault for operating in accordance with government regulations? Obviously, over here we don't - it is in fact possible for companies to be sued into bankruptcy for doing exactly what the government required. (The lawsuits over asbestos in WWII shipbuilding, for example.)

When a company does that, they spend some thousands in the early discovery phase, prove to you that they probably aren't at fault and then throw you a few thousand in "go away" settlements. If one of the companies is a stickler (and willing to pay $50,000-$100,000 to go to trial rather than settle with you for $2,000-$10,000) you just suddenly discover that they really aren't at fault and dismiss them from the case. So say you have 2 or 3 good targets and 20-50 marginal targets. You are going to spend time and money going after the main three anyway. Each of the remaining ones is almost nothing added to your cost as a percentage of the whole. Each of them can be a couple thousand dollars for almost no additional work. Why wouldn't you sue all the marginal players?

Sebastian makes an excellent point. When we talk about the cost of the tort system, it’s very misleading to look at just the amounts awarded in judgments or the amounts from a settlement. Even if you never get to that phase and a suit is ultimately dismissed, a Defendant still has to spend funds defending itself and

It’s very misleading to look at just the amounts awarded in judgments or the amounts from a settlement. Even if you never get to that phase and a suit is ultimately dismissed, a Defendant still has to spend funds defending itself.

Even more than that, there are economic costs from actions not taken because of fear of lawsuit.

Some of the data I've seen argue that the number of lawsuits isn't increasing. While that may be true, that's hardly inconsistent with the standard of actionable behavior shifting-- if people and companies constantly modify their behavior in an attempt to avoid being sued, then the set of allowable behavior can shift dramatically even without an increase in actual lawsuits. I'd argue that that's reasonable.

I know of far more instances of various things being avoided because of threat of lawsuit than of actual lawsuits.

Kevin,

Even the fronts for the trial lawyers indicate that malpractice payouts are increasing -- they're point (and I think they're fudging the numbers but I'll admit I have an axe to gring) is that the rise in payouts are less then the rise in the cost of health care. For example see http://www.juryverdictresearch.com/Press_Room/Press_releases/Verdict_study/verdict_study8.html and http://www.citizen.org/congress/civjus/medmal/articles.cfm?ID=8798 Your flat statement that awards are not up is essentially untrue, now by how much is another story.

THEIR THEIR for god's sake, I'm sorry. That was weak.

and grind for that matter -- preview is my friend.

A couple of thoughts from a commercial litigator's perspective:

1. "Loser pays" is not necessarily a panacea to increased litigation. Many if not most commercial disputes involve contracts which include attorney's fees clauses, in which the prevailing party recovers his attorney's fees. I agree that the increase in commercial litigation has more to do with a greater cultural acceptance of resolving disputes by litigation -- and of letting obligations go unsatisfied until compelled by a court.

2. If punitive damages are allowed at all (which I doubt) they should no way, no-how be awarded in the absence of a statutory violation (or, arguably, in the case of express fraud). A basic concept of the rule of law is that people should be aware of what is punishable conduct and what isn't -- "nulla poena sin leges" ("no punishment without law") and all that.

A problem with tort law is that it necessarily adjudges wrongs on a case-by-case basis, with the result that the standards of what is expected of people is often not known in advance. It's one thing when a person is alleged to have been negligent per se, as when he runs a red light and broadsides a minivan. In that case, the defendant had clear notice of what society expected of him, and disregarded his obligation. In other cases, whether a person's conduct satisfied his duty of care is left to a jury to decide, with the potential result that what was once thought acceptable is declared culpable.

The obvious result is that, because society's expectations are uncertain, potential defendants often take greater care than would actually be required of them, to take account of the uncertainty in their calculations of what will lead to liability. This is why my high school pool got rid of its diving boards, thus diminishing people's pleasure by that much more.

There may be no way to eliminate the uncertainty of tort law in its entirety, but the variable of punitive damages (with its potential for liability out of all proportion to actual fault) should be removed from the equation in all cases except those where society's expectations are clear beyond reasonable dispute.

On the face of it, the issue Jane has presented seems to be a no-brainer. It seems perfectly logical to me that there will be fewer lawsuits in a society where industry is more heavily regulated. If, for example, the government says you can't sell a drug without exhaustive testing, then it stands to reason that there will (all other things being equal) be fewer lawsuits over bad drugs than if the government said sell whatever you want.

The key question is not whether there are more or fewer lawsuits. It's whether one system or another is economically more efficient. (I'm inclined to go for more lawsuits and fewer regs, but that's just my gut reaction.)

All of which is an indirect way of wondering whether the decreased supply of spoiled fruit isn't in some sense the result of better inventory management by the supermarket, rather than fears of lawsuits.

Nope, multiple supermarkets, same story: they "don't/can't do that anymore." The fruit is still there, but it probably gets fed to hogs now.

Most of the problems with the tort system specifically and the legal system generally stem from solutions to previous problems. Eliminating the current defects does not mean that the original problems will also go away. Still, perhaps we should re-examine the original problems and see if there are alternatives that will be less onerous for society as a whole. On balance, though, I'll point out upfront that these are policy issues to which there is no "right" answer: It is what we prefer, as a group, nothing more.

Contingency fee-based litigation clearly allows more people to bring suit, and makes the game of suing, well, more of a game. It also creates an incentive for the plaintiff's counsel to exaggerate damages to greatest possible degree since the lawyer's personal reward is directly tied to the jackpot he/she can win at the end. It also means that, ipso facto, a defandant who loses is paying both his own and his opponent's legal fees.

In Britain, the charging of a contingency fee was traditionally considered a grave infraction of professional ethics. (I don't know how it is treated today, but I wouldn't be surprised if the American model has proved influential.) It was referred to by the delightfully archaic terms "champerty and maintenance," the taking of a share in a damages pot by someone who was not themselves aggrieved--like the lord of the manor taking a share of a crop he had no part in producing.

The problem that contingency fees seek to solve is access to the courts for the less well-heeled. Even a middle class person might find it tough to find the thousands of dollars in upfont cash it might take to retain an attorney to fight even a routine a car accident case, for instance. So, as a policy matter, what's a good way to allow the justifyably aggrieved to bring cases without having to drain the bank account to do so?

One approach might be a more expanded legal services corporation, the government-funded pro bono advocate in civil matter for the poor. I know that conservatives and the business community hate the whole concept of publicly funded legal services, but it may actually be the low-cost solution.

I've always had a big mental reservation about punitive damages since the recovery is always a windfall for the plaintiff. The concept is that the individual is empowered to act as a private attorney general, ferreting out wrong-doing in areas where the State is too busy or too uninvoled to seek justice for the public as a whole. (It amazes me how many people see punitive damages as theirs as a matter of right, failing to distinguish between personal compensation for loss and a right to exact revenge on a large scale.)

Clearly, the problem that punitive damages solves is a perceived failure by the state to punish wrong-doing. Maybe there's a better way to get the state to act, however, rather than to have a sequence of spotty, uneven and often arbitrary judgements by juries around the country of what consititutes a proper "punishment." Maybe a loss in a civil suit should automatically trigger an investigation. Maybe the jury can be asked whether they think there was "wrongfulness" at play. But it seems obvious to me that whether or not the defendant acted "wrongfully" (as opposed to merely indolently) has no bearing whatever on the scope of the loss actually suffered.

Punitive damages, moreover, is a huge invitation to litigation, and dreaming up ways of rechracterizing ordinary -- if incidentally harmful -- behavior as "wrongful" has become the tort lawyer's stock in trade.

Personally I would like to see both contingency fees and punitive damages go away. I would also like to see a "plaintiff pays for defendant's lawyers" rule in cases that are dismissed before going to the jury. (That, to me, is a proxy for "weak case.")

I would also like to see a repeal of laws that impose joint and several liability on a group of putative tortfeasers. (I.e. one person can be 1% at fault for something but still be held to pay 100% of any jury verdict if the other defendants settle or don't pay.) This, not surprisingly, is a California rule, where the search for solvent defendants has long since swept away any elementary concepts of justice.

If you look at the tort system as a vehicle for shifting wealth to compensate for loss, it is easy to apprecaite that there is startling ineffciency in a system that strips off 30-40% of the compensation for transaction costs (legal fees and costs). The friction in an insurance scheme is only about 2%-3%, hence the attraction of skipping an inquiry into fault at all.

So why not just a generalized insurance pool that one can claim against, kind of like a national insurance pool for flood damage claims.

I believe there are three more or less serious objections: Law suits help fulfill a desire for revenge, which an insurance settlement does not. Second, law suits promise a windfall, a jackpot, which mere loss compensation does not. The third objection might be that fewer and fewer people feel guilty about stealing from insurance companies, so a national insurcne pool could make cheating into a more overt national past time.

Have we, as a society, become more greedy than we were 30-50 years ago--and is that why we are more apt to sue than were our parents or grandparents?

Perhaps the question might be rephrased: Do we have a greater sense of personal entitlement, and is it that sense of entitlement that fuels such a ready resort to the courts?

I think a pervasive sense of entitlement is more or less self-evident, and is certainly not limited to the urban poor. If it were, we wouldn't have seen the scandalous misuse of executive compensation schemes that have brought shame to people like Jack Welch of GE, Richard Grasso of the NYSE, and prison for Bernie Ebbers, Dennis Kozlowski, et al et al.

Thus, is the tort system enabling crippling greed or just reflecting it?

"I think that the class action, which gives attorneys incentive to press claims which are too trivial to litigate individually, is unique to America."

This is certainly untrue. The "class action" model--i.e. the grouping of similar claims and/or defenses into single actions--has been in use in England since the 17th century.

Lawsuit culture springs from the infantilization of the individual, which necessarily results in the sole placement of responsibility on the shoulders of corporations, the state, and similar large institutions. Thus, it has the same roots as nanny-statism, socialism, and communism.

Publius -- On the subject of contingency fees, you may want to check out the empirical study of their effects undertaken by economist Alex Tabarrok: http://www.aei.org/books/bookID.827/book_detail.asp

He found that, when contingent fees are restricted, the number of dropped cases (i.e., cases without merit) increases, as does the time to settlement.

> is that the rise in payouts are less then the rise in the cost of health care.

It would be surprising if that wasn't the case. Folks will spend money to avoid getting sued. Since medicine must recover its costs, health care costs go up. Also, as others have pointed out, payouts aren't the only legal costs.

Other things may also increase the cost of health care, but it is misleading to the point of dishonesty to say "costs are rising faster than payouts so lawsuits aren't to blame".

Those who would perhaps hope , and wear as a badge of honor,that the United States was somehow different from the EU in having lawsuits that are absent from the EU need to pay more attention to what's happening on the ground. They should note the great Wall Street Journal piece on what is happening in Sark when the local ways run afoul of the EU structure of law and entitlement. And they should pay some attention to the attempts in Ireland to eliminate the ' compo culture' by switching personal injury cases from the courts to an adjudicatory process, the Personal Injuries Adjudication Board. The screams from the Irish bar matched those often heard in Albany when efforts were made to eliminate vicarious liability in automobile leasing.

Why has the Irish government sought to make the effort? There have been many individual stories of fraud,to be sure, but the icing was put on the cake, so to speak, when almost everyone in the Irish Army, from top commanders to lowly squaddies, sued and won compensation because the institution,otherwise known as themselves, failed to adequately protect them from noise pollution that adversely affected their hearing. I think even the most cynical Irish worker blanched at the thought that the members of the Army were successfully able to argue in court that the Army owed them compensation because the top commanders and the lowest soldiers weren't smart enough to know that rifle ranges were noisy places and that they weren't smart enough to know that they should protect themselves from noise.At the end, when the ranks of all those who filed were looked at, there wasn't anyone left who would admit that they were the ones that had the responsibility to be knowledgeable about the noise issue and should have handed out the ear plugs or the noise protectors. The example parallels the successful request of several top NYPD commanders for line-of-duty retirements ( which result in higher pensions and low taxes) because they suffered noise damage during ' duty' at rock concerts to which they asigned themselves.

Torts and lawsuits abound within the EU, now compounded by the constant assertions that local settled law has been overturned by the grant of new rights by the EU.

Eliminating contingency fees? Newsflash: Libertarians favor abridging freedom of contract!

In the non-news, here are a few items:

1. Large companies hire lawyers on contingency fees, routinely.

2. Large companies typically pay their attorney's 350-500/hr. Does anyone plan to level THAT playing field, or will only injured people without means find they can't hire an attorney?

3. Loser pays? Bring it on! If you think there are a lot of lawsuits now, just wait until litigants who previously could not afford counsel because the dollar amount in controversey was too small hear about this subsidy. The beauty of this 'feed the sharks' program is that I, the plaintiff lawyer, can prove the reasonableness of my fees by showing that Exxon pays its team of lawyers 400-600/hr.

It is a scream, really, to watch these free marketers get so excited about regulating those parts of the market they don't like. Most of the tort system can be fixed by (1) modifying 'joint and several' liability, (2) heavily screening so-called experts and (3) hugely increasing the burden of proof necessary to recover punitive damages. A fourth possible fix would be to institute a 'presumption of excessiveness' on general damages keyed into the level of injury that could aid trial and appellate courts in reducing excessive verdicts. A final fix--good luck on this one--would be to require at least a high school diploma in order to sit on a jury.

None of the above limits access to the courts, rolls back long-established rights or interfers with anyone's right to make the contract of their choice. Eliminating the hunt for the marginal deep pocket and severly reducing the shot at a large punitive award will go a very long way to fixing a system that is, compared to the regulatory state, barely even broken.

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