It is no secret that there are real problems with the way we handle liability in our legal system. With a very few exceptions, almost every politician of every political persuasion has said something about liability. Even the Democrats, traditionally reluctant to talk about liability law problems due to their strong ties to the trial lawyers, have said -- admittedly in rather guarded, euphemistic terms -- that there may be some problems. Given the rather dramatic significance of those timid words, it should be obvious to anyone that liability law is not working.

However, that observation, in itself, is useless. Perhaps worse than useless.

I know it is conventional wisdom that "admitting you have a problem" is a big part of the solution. And it sounds like a profound observation, a sort of self-help version of the Platonic/Socratic idea that the greatest wisdom is recognizing how little you know. However, in both cases, I think this supposed humble wisdom is not just misleading, but wrong, and sometimes dangerously so. I will admit, having a problem and remaining ignorant of that problem can be dangerous, but there is no inherent benefit in simply recognizing a problem. And in many cases it could be harmful.

Many are probably doubting this, wondering how it could be worse to not know about a problem. But one simple example could probably show this quite well. Imagine someone who is going about his life, enjoying himself, but also taking care of his family, planning for their future and so on. Now, imagine he is told he has an incurable disease. This is essentially the situation we have described, being aware of a problem, but that is all. And, in some cases, it might be helpful. Maybe someone who was not adequately prepared for his own demise might take some steps to arrange his affairs better. However, more likely, faced with his own demise, instead of following the course of Hollywood movies, and bringing greater meaning to his life, will instead bring stress and sorrow. Most of us will not be able to go on a great voyage of discovery in our last year, instead, we will be stuck carrying out our day to day life as always, only now aware that it will soon end, and we will never get to retire and enjoy the fruits of our labors. And, in some cases, the worry over his impending death will actually drive a man to behave badly, to drink too much, to  ignore his responsibilities, or to embark on one of those Hollywood voyages to find himself, leaving his family alone and bankrupt. And, as you can see, in most cases, the simple knowledge of a problem, without any understanding of what should be, or how to solve it, will not help at all, and can make things worse.

I believe the liability law situation is akin to the man who, finding he has little time remaining, decides he must "make up for lost time" and "begin to live right", the problem being, he has no idea what he should have been doing all along. Likewise, we are well aware there is a problem with liability law, but we lack any understanding of what we should be doing, and so we flail about blindly, trying various solutions,sure there is a problem, but not knowing what we would will find once the problem is solved. As I have described before ("The Runaway Stagecoach"), the belief that we must change, and change quickly, without any idea of how, is likely to make things worse, and there is no greater impetus to blind change than the knowledge that one is doing something wrong without the knowledge of how to do it properly.

That is why I think most discussions of liability law go astray,. and do so right from the start. Adhering to the rules of dramatic writing, rather than following the dictates of logic, they start with the most engaging examples of liability gone mad, cases where the results are so absurd that none could possibly agree with the outcome. It makes for an exciting start, and draws in the reader, but it does little to elucidate the problem, only serving to show that the current system can sometimes produce superficially absurd results. In fact, it may be worse than useless, as sometimes perfectly valid systems also produce unpleasant results. For example, thanks to double jeopardy, sometimes obviously guilty men can go free, despite confessing to their crimes, yet that does not invalidate our criminal justice system. So, this focus on the bad results, while making for good reading, makes for a poor understanding, especially if the writer takes the easy way out, flowing naturally from his opening absurdity to a discussion of the many problems with the present system. As we discussed above, knowledge of one's mistakes, without any idea of what should replace them, gives us little more than an inspiration to make random, ill conceived changes, or to wallow in despair. Only when we have a thorough understanding of the system can we understand why particular problems exist, and what can be done to remedy them, and so only when we know the reasoning behind a given system can we take the knowledge of a problem's existence and use it to make things better.

What we need is to understand what should exist, to decide what the purpose of the system is, to develop a theory of how such a system should work, to gain a full understanding of the system working well, and then we can look at what we have now and ask what improvements can be made. Only once we understand what the system is meant to do, what it can and cannot achieve, only then can we begin to look at problems and their solutions.

So, before moving on, let us ask what the purpose of liability law might be, and how it would work in a properly functioning system. We do not need to go into exhaustive detail here, we can ignore the minutiae, but we have to have a good overview of liability, a clear idea of why liability law must exist, and when it should and should not be involved in resolving a conflict and how those resolutions should be reached.

Torts, the area of law which includes liability among other topics, was once described as the sleepy backwater of the law, and ideally it should be. In a properly small government, almost all interactions should fall into two large categories. Interactions related to the protection of individual rights would fall in the criminal law, and should be relatively rare, and interactions between individuals with prior contact, which would constitute almost all interactions, would be governed by contract¹. ("In Praise of Contracts") Torts, for the most part, are those few rare cases where individuals have no prior contact, and yet end up in a situation where a dispute arises between them². The classic example being an auto accident, a situation where two individuals with no prior contact end up needing to resolve the question of who will be responsible for repairing the damages one caused to the other. Under normal circumstances, such encounters would be relatively unusual, and liability law would be little more than a safety net of the law, catching those few cases which fell outside of criminal and contract law.

Before moving on to the details of how proper liability law would work, I suppose I should point out one huge difference between modern liability law and the ideal, as well as between modern liability law and historical liability. Ideally, a proper legal system would respect contracts, and would allow individuals to assign liability, or waive it. Thus, unlike modern liability law, medical malpractice, product liability and many other matters would not be torts, but instead contractual matters³. I mention this only because so many of the examples of liability which come to mind when we think of the topic are matters which would be contractual in a properly run system that it is sometimes difficult to even imagine the shape a proper liability system would take.

The basic principle of liability law is very simple, two individuals, without prior agreement of any kind, have some sort of interaction, as a result of which, one claims to have suffered harm. The purpose of liability law is to determine if one party truly did bring about the harm done to the other, and what amount of remuneration it would take to make the injured party whole once more. It is so very simple in principle, yet a bit more complicated in practice. Still, without going into all the details of contributory negligence, proximate cause and the rest, I think our very basic description is more than adequate. A well run system of liability law would be one which applied only where no prior agreement applied, and which sought to apply consistent rules to both determine liability and determine the appropriate remedy. It is an absurdly brief definition, but as we will see, more than sufficient to help us understand the problems with our current system.

And what are those problems?

Perhaps an example would help to demonstrate some of them⁴.

Let me start by asking how many small mistakes you make in a normal day. Not big ones, not mistakes that cause noticeable problems, but simply minor slips, errors, anything that you do that you later wish you had done differently. And what if we included not just mistakes, but also any action which someone else might argue should have been done differently. What if you looked over a normal day and tried to count the times you did something that other people do in another way. How many times do such things happen to you?

I ask this because, for a liability lawyer, those small errors, or deviations from the practices of others, are all opportunities to prove you were at fault.

Allow me to explain.

There is probably nothing more emotional for parents than having a child with a birth defect. And, as with most troubling events, they tend to react to such events with attempts to understand them, to ask why it happened and how. Unfortunately, for the parents anyway, most birth defects are the result of genetics, or of minor problems during pregnancy, in other words, either actions taken by the parents, or simply something inherent in their genes. Many other times the problem arises form causes which are simply impossible to determine. However, most people will never say that anything the parents did could be the cause, and there is little satisfaction in saying the cause cannot be known.

And lawyers know this. And so they find such parents, and convince them that it is "just good sense" to look over the medical records to "see if someone made a mistake". And, as I mentioned above, "mistakes" are very easy to find. Of course, it is very hard to prove such mistakes actually caused the problem in question, but that is not a problem in such cases. After all, the jury has before it a child suffering birth defects, and evidence of a variety of mistakes, it takes very little to make the connection between the two, regardless of whether or not the two have any logical connection⁵.

It is tempting to blame all of this on the easily swayed emotions of juries, but that is a simplistic explanation. After all, juries were every bit as emotional a century ago, and yet they failed to create the "liability lottery" we have today. Even in the 40's and 50's juries could be swayed by a passionate argument, so why was it only in the 60's and later that liability became such a gold mine for unscrupulous lawyers? It can't just be the ability to sway the juries with passionate arguments, as people have not changed that much in the intervening decades. So what was it?

The answer, as should be obvious from our earlier description of a proper system of liability, is that the law changed, juries were no longer instructed in strict rules of law, nor were cases summarily dismissed for a lack of evidence. Instead, cases went ahead based on rather dubious logic, with legal principles vague enough to give jury sympathy free rein, and we ended up in the situation we have today, where the law is so ill-defined, the principles so nebulous, that arbitrary decisions are the only ones possible, since there simply is no way to tell in advance whether an action will or will not make one liable⁶.

The first issue here is that, under an ideal system, or even simply the historical system, this would have been a contract case, not a tort. The obstetrician clearly has a preexisting relationship, and almost certainly a contract, with the parents, and promises to provide certain services. Whether or not those services meet the contract's specifications is a question of contract, not liability law. And under past systems, that is what would have happened. If the obstetrician was foolish enough to promise a birth without any chance of defect, he is liable, if he, on the other hand, presented the parents with warnings about such things, then he is probably fine. But the point is, he would be judged on a very concrete question, did he provide what he promised. Of course, there were cases where there was a question as to what was promised, where there were questions about what one could expect as normal practices from doctors and such when the wording was sufficiently vague, but, fr the most part, there was little room for sympathy and uncertainty, contract law was dry and boring and most of all predictable. And this would have clearly been a case about contracts⁷.

The second issue here is the issue of proximate cause. The old tort law was very clear on this issue, if the defendant was not the immediate cause of a problem, as a matter of law, he was not liable. And as it was a matter of law, it often did not even get before a jury to allow their sympathy to come into play. If the defense could show an intervening cause, often the case simply died right there. Yes, there could be disagreements as to facts, which would then lead to a jury becoming involved, but when a jury is asked, not who they like better, but to decide whether A came between B and C, preventing B from being the immediate cause, quite often their sympathies are muted, and they handle the more technical abstract question quite dispassionately. (Also, when it comes to questions of fact of this sort, the plaintiff often has much less leeway in playing up the sympathy side of things.) In our particular example, this likely would not come into play, but in many other cases, this would end the trial long before they got to the jury.

Actually, to be a bit more precise, proximate cause may not come into play here in terms of an intervening act, but it might come into play when the plaintiff would need to show that the defendant had a role in the injury at all. Again, the old system was much less generous concerning theories of causation, and did not tend to allow the sort of nebulous arguments that are allowed today. In our case, for example, simply showing the doctor failed to perform various actions, or did some things that are considered errors, would not have been enough, it would need to be shown clearly that his actions caused the birth defects⁸. And as many birth defects are more likely to be caused by genetics, events during gestation or other non-delivery causes, it is unlikely the plaintiff could cross this hurdle without some very convincing proof. In the past, again, this may never have seen a jury, but under today's more lenient system, with a more lenient idea of what constitutes proof of causation, the case has a good chance of making it to court⁹.

Another aspect of causation also comes into play here, and that is contributory negligence. In the past, if it could be shown the plaintiff acted in such a way as to contribute to the harm, then the defendant was normally free of responsibility, the idea being that if you brought even part of the harm upon yourself, you cannot then blame another for the result. Modern courts began to find this idea too "heartless", since someone only slightly negligent could end up with nothing, and so they developed "comparative negligence", a theory that a plaintiff 10% guilty of the harm, could still claim the other 90% of damages form the defendant. In other words, even if you set up the situation which brought you to harm, if someone else played a part, they were still likely to pay. Or, to apply it to our case, all the other causes of birth defects, from parental genetics to any mistakes made by the mother during gestation, could be safely ignored, and the plaintiff would still collect at least part of the damages¹⁰. Or, to make an extreme case, a mother, genetically predisposed to the birth defect in question, who drank and smoked and ignored dietary guidelines, could still claim the obstetrician made a mistake and collect at least part of the costs of the care of her child from the doctor. That would not have happened under the older system.

Finally¹¹, the older system was not fond of large payments, or payments based on ill-defined harm. The plaintiff was reimbursed for the harm done, and that was all, the system existed to make him whole again, and nothing more. It was not intended to offer the tremendous pay days we have in the modern system. So, how did that change? First, with the introduction of pain and suffering as a cause for payment. While ti is easy to show with specificity how much it will cost to fix his car, or have corrective surgery on his back, it is very hard to define how much anyone's suffering is worth.And we can see how vague it can be when examining jury awards for roughly similar cases. In one the pain may be worth a few thousand, in another a few million, in a third, worth nothing. Pain and suffering allows for juries to award whatever they want, without any reference to real damage. Similarly, the introduction of punitive damages in certain cases gave even more leeway. Arguing that some actions were so harmful we ought to add more fines to discourage others from doing the same, plaintiffs simply piled claim upon claim, effectively suing for arbitrary amounts.

The old system, of course, would not have allowed either claim. While pain and suffering might be very real, the courts recognized that they were both unavoidable and impossible to remedy through payment. By the time a plaintiff got to court, his pain and suffering were over, or else they were ongoing, and no payment would make them go away. Since the purpose of the trial was to make things as much as possible as they were before the incident, the transfer of funds was intended to repair real damages. It is not possible to pay to fix suffering, and so such payments made no sense. Likewise, punitive damages were opposed tot he rationale of civil court. Civil court was there to make things right, not penalize anyone. If an act was bad enough to require a penalty, then the criminal courts would deal with it (or regulatory agencies), the civil courts, especially in torts cases, existed only to make things right. And thus, under the original logic of liability, neither pain and suffering nor punitive damages were allowable¹².

It is tempting to begin this next section by asking rhetorically "So, why should anyone care about these changes?", but the answer is too obvious to even try such an approach.  Though they try to downplay it, even the Democrats seem aware that our current liability system is a tremendous drain on our resources, costing us a fortune, preventing innovation, making many essential fields of activity simply too costly ("The "Right To Sue" As Our Only Right", "How Government Creates Crime"), driving up the cost of medicine ("High Cost of Medical Care"), and otherwise making it difficult to do many jobs or sell many goods in our economy. In fact, it is so well known, I think I shall leave it at that and spend little more time on the direct damages, and instead point out a few less recognized problems, such as the problems caused by uncertainty, the growth of the state and the destruction of personal relationships caused by our tort system.

Uncertainty is one of those topics too little considered in most writing on politics and economics, and in this area as well. Of course, some uncertainty is inherent in life, as the future is always unknowable. However, we enter into a society, among other reasons, precisely because it grants us a degree of certainty ("Traffic Lights, Predictability and Conservatism", "In Defense of Standards", "Humor and Nightmare", "In Praise of Slow Changes", "Predictability", "Pluralism Versus Multiculturalism", "More Harm From Multiculturalism"). A common culture, predictable laws, enforceable contracts, all create a secure predictable environment in which we can plan for the future, increasing our stability and security even more.

The unpredictability brought about by our current tort system undermines that predictability. Because it is now impossible to know in advance whether or not a given action might open us to liability, it becomes much more difficult to plan for the future or to undertake many actions. In addition, because others are plagues by the same uncertainty, they too behave in less predictable ways,  adding to the uncertainty. And as a result, we lose one of the greatest benefits of our society, an environment which not only produces relatively certain results, but which encourages certainty and planning for future events, thus creating ever more stable environments, allowing us to plan ever farther into the future¹³.

Of course, this completely ignores the results of predictability which are not economic. Besides the economic costs, a lack of predictability brings about changes both social and political. Socially, unpredictability tends to exaggerate feelings of impotence and futility,  leading many to give up on planning for the future, even when such planning is still possible. Frustrated by the lack of certainty, many simply give up and adopt a very short sighted perspective. Likewise, in the law, when confronted with the seemingly random outcomes, people often despair of fixing the problem themselves, and turn to the state, asking for a solution, any solution, resulting, as I said earlier, in the tendency to adopt any supposed answer, regardless of its rationale.

Having turned to politics, let us move to the second topic, the way our present liability system encourages governmental growth. Or, to be more precise, the way that liability tends to move decisions from the realm of private choice into the realms of either public policy or public opinion.

Under contract law, an individual is free to make choices as he wishes, provided he violates no others' rights. He can assume risks, engage in any dangerous activities, take a loss on bargains and otherwise do things which are normally considered harmful or self-destructive. If he thinks it is in his best interest, he can contract in any way he wishes, provided the other party agrees. That is the nature of contract, it is private law, established between two or more parties, binding only upon them, and determined only by their wishes and mutual agreement. And under the old liability system, almost every case we see today as a tort would have been controlled instead by contracts¹⁴.

Tort law is the antithesis of private decisions. And necessarily so. Individuals who meet by chance have no agreements between them, and so decisions must be made by some external set of rules. And so torts tend to be decided by reference to "public policy", that is rules which seem most likely to encourage desirable behavior.

When torts were a backwater, this mattered very little, as the behaviors being discouraged were little more than careless driving or failure to take adequate precautions for people passing construction sites, and the public policy being enforced was generally a bland "safety first" set of rules to which few could object. But now, with torts covering more and more of our lives, their utility as a tool of activist public policy has been recognized by judges and legislators and more and more often the courts are ruling not on liability but on questions of policy, penalizing not so much for negligence as for failure to comply with the unpredictable trends of political correctness.

Even when public policy does not play a part in tort cases, with the rules growing ever more vague and the scope expanding so rapidly that precedent cannot keep pace, cases are often decided by nothing more than jury sympathy, that is fines are applied, essentially, by a public opinion poll. Where once individuals were allowed to make agreement between each other like adults, now they are treated as children, with their decisions being subject to review by both the government and a committee of their peers, and only those contracts meeting with the approval of both being allowed to stand¹⁵.

And that is one of the more significant ways in which these changes in liability alter our government. While we often talk about the expansion of government, we usually think only in terms of the explicit expansion of power, but that is only a small part of the problem. There are many more subtle issues. For example, not just the tendency to make more and more of our decisions subject to review by the state or by public tribunals, but the way in which those changes make us accept as normal the idea that our choices should be subject to outside approval. ("Collective Action and Government",  "Volunteer Fireman, Barn Raisings and Government", "The End of Private Action") I know many do not agree with my position on the war on drugs, but it does provide an example here. Ignoring all the associated crime (partly or mostly caused by making drugs illegal)¹⁶, the basic question is whether or not my decisions to do something which others find unacceptable should enable the state to punish me. We are not talking about a violation of anyone's rights, nor of the crimes which I may commit¹⁷, but simply the act of me doing something others find unacceptable. And sadly, with or without the fig leaf of "harming others"¹⁸, both the left and right has come to accept that our choices are subject to public review, regardless of whether or not others' rights are involved. (Nor is drug use the only area where this is true, just think of how often people who should know better cry "there ought to be a law", for matters great and small, effectively asking that the state make yet one more decision a public one.) So long as we continue to say that me should move choices form the private to public realm, we will never see a decline in the size of government. As long as we call for government activism, it will grow. It is inevitable. ("Doing Something", "Don't Blame the Politicians", "The Single Greatest Weakness", "Government as Indulgent Parent", "Grow or Die, The Inevitable Expansion of Everything", "What We Deserve")

Which brings me to our final topic, the social consequences of our changing view of liability.

The social aspect of liability is certainly the most subtle, and the least appreciated, though from time to time some fo the more obvious expressions of it are discussed, such as the need to pass "good Samaritan" laws, or the absurd consequences that can attach to simple kind acts, such as apologies.  But for the most part, such observations normally serve as nothing more than an introduction to more conventional complaints about the liability system, accompanied by calls for ill-defined "reform". Rarely, if ever, does a commentator actually consider what the need for such laws say about our individual interactions, or the way our tort system has changed our personal relationships.

Of course, the change just mentioned is the subject of the majority of comments as it is the most obvious. Where once it was a matter of legal indifference whether or not you offered assistance, that is, it was up to you, there was little legal penalty for doing so, now it is a very dangerous proposition, making us less inclined to offer aid, and not just in emergencies. There are a host of areas where offering to help, or doing things that would be seen as simple kindness, can suddenly become dangerous. For example, since lawyers seek the deepest pocket sin suits, and causation is no longer at issue, it can be dangerous to invest in small businesses, especially if you are more wealthy than the owners, as their liability can suddenly become yours, especially if you wealth attracts attorneys. Nor is it just business. Allowing other families to use your swimming pool can be a source of trepidation. In fact, just owning a swimming pool is risky, as many cases have been won by those who illegally entered a pool, on the grounds that it was an attractive nuisance, and thus the owners were to blame for simply having a pool, even if they never invited the plaintiff's in.

All of this has created something of a siege mentality when it comes to strangers, and to a degree even with those we know. Of course strangers have been viewed various ways in different times and places, so it would be absurd to postulate a past where everyone greeted strangers with a smile, but I do not think it is too much to say that we are unusually afraid of interacting with strangers in our time, and mostly for fear of litigation. The act of lending anyone anything, assisting anyone, or allowing anyone into your place of business is to open oneself to potential lawsuit. And, sadly, it is not just a remote fear, there are lawyers who specialize in finding violations of California's ADA laws, just to collect bounties. Likewise, the "slip and fall" con men are more numerous than ever, and mostly because of the broad definition of liability. Lawyers send trailers equipped with x-rays and radiologists to mills and mines to try to drum up enough plaintiffs to file class action suits. Sadly, we live in a time which is mildly paranoid, but even more sad, that paranoia is not without foundation.

There is more to it than that, there is the hostility this engenders, the insecurity, the tendency to do anything and everything to cover yourself, the impetus to blame others lest one be blamed and many other responses to an environment made uncomfortable by the legal environment, but I think I have covered that well in my essay "How the Government Corrupts Relationships". Instead, let us look at one other aspect of our culture, the common beliefs we all share, and the way the changing liability law has changed them.

First, let us ask who liability suits tend to target? Well, in general manufacturers, which is bad enough, but even more specifically, those manufacturers who attempt to avert dangerous situations, as well as doctors, manufacturers of pharmaceuticals, and, in less common cases, those who remove toxins, who contain and transport hazardous materials and others who handle dangerous situations. In addition, suits have begun to also target those who protect us in other areas, especially police, but often security guards, paramedics and anyone else who is at "ground zero" when something bad takes place. These tend to the the groups which attract the greatest attention¹⁶.

The problem here is that these people are the same ones who also do the most to prevent injury. Because they are close to scenes of the greatest risk, they are the most often sued, and thus we come to think of them as incompetent, untrustworthy and dangerous. And so we come to suspect those upon whom we should rely for our safety. Worse, we sometimes come to think of lawyers as champions of justice, which can be true, but they can also be simple seekers after paychecks, but the liability narrative tends to appear in the pop culture in black and white, making those who protect us seem villains and those who sue them for their own gain as champions.

A similar phenomenon occurs when it comes to the novelty of goods. Despite a cultural fixation with novelty (see "The Fascination with Change", "Uniqueness", "Something of a Paradox" and "Catastrophic Thinking, The Political, Economic and Social Impact of Seeing History in the Superlative "), the liability industry has managed to convince us that innovation is dangerous. And it makes sense. In a court, the proven technology is easy to defend with tons of experts, lots of evidence and research and so on. New technology, even if it much safer, is harder to prove safe. And so, in court, lawyers have a tendency to attack the novel, and corporations are equally aware the new is a liability magnet, And as this mindset has made its way into our pop culture, we have come to believe that novelty in some areas is inherently dangerous. We may be fascinated with trendy novelties in many areas, but in terms of protecting ourselves, we are strangely reactionary.

And that combination of cultural beliefs serves to lead us to make bad decisions. As the conventional wisdom tends to play a role in thousands or millions of decisions every day, little by little, our fear of those who try to protect us, our worry that they are incompetent, greedy or more interested in themselves than our well being, lead us to make decisions that end up leaving us at greater risk, even though we imagine the opposite. Worse, it colors other decisions as well, sometimes have far reaching consequences that we never imagined. For example, were it not for the combination of the price inflation caused by liability ("High Cost of Medical Care") as well as the negative image of doctors for which liability is largely responsible, would we have had nationalized healthcare?

I could go on, describing the many ways in which these changes have touched our economy, our government and our lives in general, but I think these are the most important points. The economic harm, the growth of government, the substitution of public for private decision making, the loss of predictability and stability, the introduction of a degree of suspicion into our personal relationships and our distrust of those who would protect us and the newest technologies, those are the points I think most worth remembering when discussing this topic.

Of course, there are those who will say I exaggerate this topic, that I am making mountains of molehills, but they forget the simple fact that once we admit a general principle, it will inevitably run to its logical conclusion. ("Inescapable Logic", "The Endless Cycle of Intervention", "The Cycle of Compassion", "Res Ipsa Loquitur", "Recipe For Disaster", "Slippery Slopes") If anyone had predicted when Griswold was passed that a law allowing married couples to buy condoms would lead to the end of prohibitions on abortion, they would have been called insane, and yet within a few years that was the result. Likewise, when smoking was banned on international flights as a "common sense" protection, anyone who declared it would lead to a near total ban were called extremists, and yet, though not totally banned, within two decades the situation has gone a long way toward those "insane" predictions. Likewise, I fear this liability situation is but half way along its course, if that. Recall, the true beginning of the tort revolution may have been as far back as the 40's (with one or two cases even in the 20's), but the real revolution did not begin until the 1960's, and only with the asbestos and tobacco suits did the liability lawyers become a driving force in the formulation of new legal principles. So we have been experiencing their full influence for but thirty years or so. And even then there have been a considerable number of others pressing in the opposite direction for a considerable part of that time. It is in perhaps only the last decade or so²⁰ that the liability revolution has really come into its own.

Because of that, I think that it is not so much exaggeration you find in my writing as predictions just a bit ahead of their time.Only time will tell of course, but I am convinced that, without a significant change in our legal environment, in  a few more decades my exaggerations will seem mild in comparison to what reality will hold.


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1. I ignore here the modern tendency to add a third area of law, that of regulatory law. In most modern government, contracts have been deprecated in favor of ever growing regulatory law. Where once the law was divided so that most was covered by torts, some by criminal law, and a little by torts, we now have much covered by regulation, then torts, then contracts and criminal law. Of course, many imagine that is for the best, as regulatory laws protect the "little guy" from exploitation, but, as I have argued elsewhere, this is a mistaken belief. Of course, that is far from my topic here, so I will direct those curious about my reasoning to my earlier essays "Medical Regulations", "Medical Regulation II", "Professional Education", "Business Licensing and Regulation",  "Another Thought on Regulation", "Insider Trading", "Gun Control, The FDA and Regulating the Law Abiding", "Bad Economics Part 2", "Bad Economics Part 3", "Bad Economics Part 5", "Those Greedy Bankers" and "How Government Creates Crime".

2. One of the ironies of the modern tort law is that some of its largest areas of operation, medical malpractice and product liability, were for most of our history the province of contract law, as clearly there is a preexisting relationship in both situations, and even one or more preexisting contracts. But, as we will discuss later, the law changed to make contracts of limited use in such situations, moving the law from contracts and private agreement to torts and public policy. (Of course, as I discuss in "Who Will Decide", "In Praise of Contracts" and "How the Government Corrupts Relationships" -- and elsewhere -- the recent tendency of law has been to uniformly allow less private agreement and more public involvement in every aspect of life.)

3. Even if we imagined a contract drafted so badly that there was no assignment of liability, the question would still be contractual, handled by the court as any other matter related to a contract but not explicitly mentioned. In other words, preexisting legal principles (such as caveat emptor) would determine liability. Of course, it is unlikely anyone would ever be so foolish as to say nothing about liability (even now companies insert liability waivers, though they know how little power they truly have), so it is unlikely to come up, but the point is that liability would remain contractual even if it weren't mentioned in the contract.

4. I actually decided to write this essay when I saw an advertisement run by lawyers seeking clients who had children suffering from birth defects. It struck me as such a troubling sign of "predatory lawyering" that I decided I had to write about the many problems with our tort laws. (I use the term "predatory lawyering" in emulation of the absurd term "predatory lending" -- see "Excuse Me?" and "To Correct Debra Saunders" - though I think my term is the far better of the two, since predatory lending is an absurdity that does not exist, while lawyers hunting for clients to take on deep pocket defendants surely do exist.)

5. We can see this in the tremendous number of cesarean births, after lawyers convinced juries, despite all medical evidence, that failure to perform c sections cause cerebral palsy. There was very little evidence in the majority of these cases, and yet, using the same logic I described above, juries continued to issue award after award.

6. I will discuss later the terrible consequences of this uncertainty, but for those interested in "reading ahead", as it were, I suggest my posts "Cranky Old Man?", "In Defense of Standards", "Addenda to "In Defense of Standards"", In Praise of Slow Changes", "Predictability", "The Shortcomings of Pragmatism", "The High Cost Of Protection", "Pragmatism Revisited", "Expectations", "Conservatism, Incremental Change and Federalism", "Empathy" Threatens not "Justice" but Predictability", "Sotomayor and Empathy", "Humor and Nightmare" and "Traffic Lights, Predictability and Conservatism" which discuss the consequences of a lack of certainty in human interactions, specifically uncertainty regarding the legality of any given action.

7. The proponents of modern tort law argued that the contract system favored the "big guys" who would write the contracts in their favor and give the customer a "take it or leave it" argument. However, this is absurd. As we have seen in so many areas, the customer can always get what he wants, if he is willing to pay, and, if enough people want something, then it probably won't even cost much. And, the argument also ignores the fact that contracts work both ways. While it might exclude the customer from receiving some sorts of compensation, it protects the customer as well. But I discuss that topic in much more detail in "In Praise of Contracts". (The one thing a contract system would not provide is the modern tort lottery system where some customers get big payouts and others get nothing, with the result having little relationship to either harm done or liability.)

8. Modern courts still pay lip service to traditional requirements of causation, but in practice the demands are much less stringent.

9. Modern courts often allow theories that would not have made it past previous courts, such as arguments based on probabilities of causation, arguing that a plaintiff with a 10% chance of causing a problem should support a payoff of 10% of the harm done, and other such imprecise arguments. The degree to which causation is emphasized varies from jurisdiction to jurisdiction, which is why multi-state courts spend so much effort on forum shopping, but even the most stringent modern jurisdiction is much less demanding than the courts of the past were.

10. In practice, it is unlikely these cases will ever have true comparative negligence outcomes. Juries are reluctant to blame parents, and defendants don't want to appear unsympathetic by blaming the parents. So, unless the parents were so detestable in their behavior it is likely to completely exonerate the defendant, this is probably not going to come up, and the defendant will be 100% liable or 100% free of blame. (Note also how sympathy and jury feelings play a greater role than the facts. That is one of the biggest problems of the present system.)

11. I am ignoring some changes, such as class action suits (See the footnote to "What is the Role of the Attorney General?") to keep this essay a reasonable length. Obviously there have been more changes than simply those I listed, but I think those listed are the most significant, and so I shall limit myself to these topics.

12. Older courts did allow some slightly nebulous claims, such as loss of consortium when a spouse filed suit, but in general they allowed only trivial amounts for such claims, and so the harm was relatively minor.

13. Many forget this fact, but the farther we can plan into the future, the greater our returns on investment. If the future is relatively certain, then the amount of present capital it takes to produce a result in ten years is much less than to produce the same result in one year. So if we can predict the future with some certainty into the distant future, we can plan much farther ahead and spend much less to produce the same results, leaving us much more affluent as a society.

14. I exaggerate  a bit here when describing the freedom of contracts. Prior to the near destruction of contracts through liability cases, the opponents of individual choice began to chip away at contracts in another way, trying to void contracts as "contrary to public policy". It was a weak attack, and mostly vanished after torts made contracts almost useless, but it still appears from time to time when a contract needs to be invalidated despite being valid on its face.

15. Of course one party to the contract needs to bring suit before such a case comes to trial, but with many contracts involving a number of parties in modern commerce, it is a not hard to imagine a contract which pleases every signatory except for one who has regrets and then argues that the contract is somehow contrary to policy, or else was established by the other parties' excessive bargaining power. (An analogous situation would be the individual workers often sent to plants by unions so they can call for votes on unionization even when no workers had expressed any interest in unions. Likewise, a single individual dissatisfied with a contract can invalidate hundreds of thousands of contracts which were perfectly acceptable to those signing them. Massive class action cases are a great example of this.)

16. Many point to crimes "caused" by drugs, but then do not apply the same rules to others. Those who drink, or gamble, or spend more than they earn, are also prone to more criminal behavior. However, no one calls for laws enforcing fiscal discipline or banning all behaviors which may incline one to crime. Nor would I want them to. Our system is designed to punish criminals, not to prevent people from crimes they might commit, yet that is what some claim is the purpose of drug laws. Even if we ignore how much crime is an outcome of the drug laws themselves ( "Drug Legalization", "Inconsistent Reasoning", "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"") using drug laws as preventative detention is contrary to our entire philosophy of government. (Of course, jailing people because they engage in activities we [who "know better"] find bad is also contrary to our philosophy -- but sadly we  long ago forgot that philosophy -- See "The Danger Inherent in Banning "Bad Ideas"", "The Right Way" and "Liberalism, Its Origins and Consequences".)

17. This is in some ways a silly argument. If drug users commit crimes to obtain drugs, then we should jail them, but jail them for their crimes. If teenagers commit crimes to buy video games or tennis shoes, should we ban tennis shoes or video games? Of course not. And likewise, if people commit crimes to buy drugs, we should not ban drugs, simply prosecute the criminals. Despite popular perception, the drugs did not "cause" those crimes any more than guns "cause' murders. Weak individuals caused those crimes by choosing to commit them. And were there no drugs, they doubtless would have found another excuse, be it booze or overeating or prostitution or trading cards. When one is unwilling to support himself to the degree that he turns to crime, he will always find a justification for doing so, and drugs are but one more justification. (See postscript II for more argument on this topic.)

18.The idea that drug users should be stopped because they "harm others" is absurd. People who drink, gamble, have affairs, spend too much time watching television, neglect their children, work too much, and do almost anything else also "harm others". The government is not here to prevent all forms of harm. It exists to prevent very specific types of harm, that is the violation of the rights of others, and those arguing drug users "harm others" rarely allege that. And thus there is no real basis to ban drugs simply because users "hurt others". If we allow that justification, there is no logical limit to the use of government power.

19. There have been cases where large suits targeted companies involved in incidents where they did play a significant role, such as asbestos cases and cigarette companies, but they are nowhere near as numerous as the cases looking at a damaging event and then seeking deep pockets. And even in those cases, it is often not precisely clear how much liability really should have been assigned. But that is not our topic here, specific cases are a matter for other posts.

20. Even in the last decade, liability law has been an area of conflicting pressures. There are not that many in the legal profession pushing against the logic of our modern liability system, but now there is a public backlash, at least to some degree. As I described, it is unfocussed and thus largely ineffective in bringing about actual reform, but it does serve to slow the progress of those who would seek greater freedom for liability cases. Thus the liability revolution has never yet experienced a time in which they operated with a free hand, which helps explain why the transformation of our liability laws has been rather slow, at least in terms of modern political movements.

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POSTSCRIPT

This is obviously not the first time I have discussed the topic of liability law. My earlier writing on the topic can be found in "Fictional "Rights" Versus Real Rights", "Additional Thoughts on Divorce", "In Praise of Contracts", "Utopianism and Disaster", "Life Is Not Fair - And Trying To Make It So Makes Things Worse", "In The Most Favorable Light", "Antibiotics, Automobiles and the Free Market", "The Inherent Disappointment of Authoritarianism", "Greed Versus Evil", "Government Intervention and the Purpose of Government", "The Quest for Deep Pockets", "Informative Article" and "The "Right To Sue" As Our Only Right".

POSTSCRIPT II

When I say drugs do not cause crime, doubtless someone will point to "addiction" and use that as an excuse, or an argument that drugs somehow "cause" crime the way liberals imagine guns cause crime. But there is no evidence to support this, and much to argue the opposite.

I will start by pointing to myself. I am a user of narcotics. Oh, a legal user, not a criminal, but I take a considerable dose of narcotics every day thanks to extensive nerve damage in my extremities. And yet, despite that, I am not prone to crime. Of course, many will find that a hollow argument, and point to the need to pay for drugs, or the pain of withdrawal, and say my example is not valid. So let me go back a few years to a time when I was still not diagnosed, and all we knew was that I suffered from horrible pain. My neurologist would prescribe pain killers, but, later, worried that I was taking the maximum allowed, he would refuse to refill for a week or two after I ran out, leaving me not only in excruciating pain, but going through withdrawal. And yet, even though I was in withdrawal from narcotics, it never drove me to crime.

Of course, you may say "but you are an exception, most drug users lack that discipline". But the facts still speak otherwise. Every year, many, many people undergo surgery and take painkillers, and take them long enough to develop small addictions.
  Likewise, those suffering form back pain, bone pain, joint injuries, all take painkillers long enough to  develop addictions.  And yet, when those suffering pain undergo corrective surgery and discontinue the medication, or those leaving the hospital stop taking opiates, they go through the withdrawal process, either tapering off or not, and fail to take to a life of crime.

In short, saying "drugs cause crime" is absurd as saying "guns kill people". Drugs are a convenient excuse for those caught committing crimes. They claim they are addicts, and they get more lenient treatment. At least they have a chance of being treated as a poor addict rather than a simple criminal. Who knows? Perhaps it is not even that self serving. As I said in "Three Versions of Evil and the Confusion They Cause", people don't like to think of themselves as criminals, so perhaps they use drugs to excuse their crimes to themselves as well. But whatever the case, the fact is, drugs are not causing any crimes, they are simply an easy excuse.

(Of course, this ignores the crimes caused by banning drugs, in the same way banning alcohol in the 1920's caused crime. But no one today would argue alcohol inherently creates criminal gangs, that was solely the outgrowth of prohibition. And likewise, much of the crime we associate with drugs would vanish were drugs no longer illegal to possess or distribute. But that is a topic for another essay. See "Drug Legalization", "Standing By My Principles", "Who Does It Harm?", "It Doesn't Matter to ME...", "Government's Abusive Behavior", "For Your Own Good", "The Right Way", Utopianism and Disaster", "The Danger Inherent in Banning "Bad Ideas"", "The Threat of Perfection", "The Inherent Disappointment of Authoritarianism", "The Most Misleading Word", "Luxury and Necessity", "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"" and "Inconsistent Reasoning".)