As health care reform has been in the news lately, many conservatives, libertarians and others opposed to government controlled health care have been expressing interest in tort reform. You see, many of the arguments for government intervention rest upon the high cost of medical care, whether because of the expense itself or because such expense is supposed to make care unavailable, and so those opposed to intervention have been looking for alternative solutions to the high costs. And, while I do not attribute those costs to tort reform, at least not to the degree some do¹, I do agree that, at least in part, tort costs have been part of driving medical costs up. Even if they weren't, though, I would still think this an important topic, as tort reform does damage far beyond increasing the costs of health care.

However, I do not intend to hold forth on the costs of tort law here. I have written about the topic before², and should probably deal with that topic in a post of its own, as the way that tort laws not only raise costs but cause us to be less safe and healthy is a fascinating topic, deserving our full attention.

No, today I intend to discuss the biggest problem we face, the impossibility of enacting meaningful tort reform.

Many years ago I had some friends who were interested in animal rights, specifically in anti-cruelty laws. Some were rather activist sorts, who wanted to pass crusading laws radically extending the scope of what constituted cruelty. Whenever I spoke with them, I had to point out to them a fact that many people seem to forget, lynching was illegal in south from the beginning of the US. What I meant by that was that laws are in themselves meaningless if everyone in the community disagrees with them. When vigilantes or Klansmen murdered someone, if their action enjoyed the support of the community, for good or ill, it was all but impossible to jail them, regardless of the law. Similarly, if these animal rights activists managed to expand cruelty's definition beyond the point most people support, then most likely the laws would simply never be enforced, or if enforced, the trials would result in acquittals.

And that is the problem with tort reform, but even worse. The lawyers are not only one of the interested parties, but they also provide the judges and legislators who pass the laws AND interpret them. in other words, one side has an inordinate amount of power in the process³.

But let us suppose through some massive public uprising, we managed to elect a majority of non-layers to the legislature of a state, and anti-lawyer sentiment broke the influence of the ABA. And let us suppose the legislators took my advice and passed laws restoring the full right to contract and the ability to privately assign liability without the courts reading such clauses and contracts out of existence.

The problem remains that judges, that is lawyers, interpret those laws. The same lawyers who practiced under modern tort law, who read all those high-sounding law journals promoting "social justice" and a "social insurance theory of torts" and all the rest. And many are in sympathy with those theories, or, if not, at least have been conditioned to see the law in those terms. Which means, if they refrain from striking down the laws outright at the appellate level, they still can find ways to read the contracts out of existence while seeming to follow the letter of the law, the same way they originally destroyed contracts to put us in our present position.

All of which makes me rather pessimistic about the possibility of reforming torts. The only real hope is a combination of a massive public uprising, legislative action, and public education leading to juries rejecting attempts to eliminate contracts or use torts as a social welfare scheme. Unfortunately, with juries more prone to act out of sympathy than principle, and with our culture emphasizing emotion over reason, we are quite unlikely to see juries with the sort of consistent principled mindsets we need⁴.

In other words, any plan which relies on tort reform for success is not likely to succeed.

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1. The best summary of my thoughts on the source of high costs in "High Cost of Medical Care". I elaborate on some specifics in "Clarification of My Argument for a Free Market in Medicine", "Cutting "Costs"", "Government Efficiency", "Misunderstanding Profits" and "Contradiction" as well. And I deal with some particular topics relating to tort reform in "Red Herring", specifically showing why it is irrelevant that medical costs have not fallen in states enacting some version of tort reform.

2. My thoughts can be found in "Red Herring", "Life Is Not Fair - And Trying To Make It So Makes Things Worse" and "Utopianism and Disaster". A great source, though slightly older, is Peter Huber's Liability, the best book for the general reader on the topic.

3. An interesting parallel can be found in this post by Mike Hanlon, cited in Best of the Web:

Currently, consumers enter into a health-care contract with an insurance company. This contract has an asymmetric payoff, in that the insurance company gains when a consumer stays healthy, and the consumer gains if they fall [sic] ill. If a consumer falls ill, the insurance company would like to renege on its obligation. Yet it cannot, because the contract is enforced by an unbiased referee. That referee is the United States government.

The fundamental problem with the Democrat's [sic] health care proposal is that it will cause the the [sic] government to abandon its "referee" role in order to become my "contractual opponent." Democrats suggest that government can play the role of both opponent and referee. Maybe I'm too competitive, but I prefer when my opponent and my referee are not the same person.

Opposition to "health care reform" is not so much philosophical as it is practical. Sarah Palin learned something at the University of Idaho that a lot of folks didn't learn at Harvard: when contractual payoffs are asymmetric, you need a referee to ensure compliance. I want my referee, and the Democrats are trying to take it away from me. Doesn't that justify a little anger?

4. I spoke about our immature mentalities in "I Blame the Romantics", "Graphic Novels, Comic Books and Cultural Barometers" and "An Interesting Article". I also argued about the harm the resultant inconsistency does in  "Smaller Government , Fair Weather Friends and Special Cases", "Pragmatism Revistied, Again", "Predictability", ""Empathy" Threatens not "Justice" but Predictability" and "Sotomayor and Empathy".

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POSTSCRIPT

I do not mean to suggest that torts can never be reformed. As I argued in "The Danger Inherent in Banning "Bad Ideas"", "Inescapable Logic" and  "All Or Nothing Thinking", the guiding logic of government, culture or law will eventually find expression. But it will take some dramatic changes to our culture before we find ourselves in a condition which favors tort reform. Just think of it this way, can you imagine a jury siding with a company that made a defective tool just because the buyer signed a liability waiver? Well, until they do, and do so consistently, the conditions will favor those who seek expansive tort law and absurdly inflated judgments.