Saturday, January 15, 2005
I.
In writing the previous article, I did a lot of research into both tort reform and Social Security reform, and as I did my research, I kept coming back to the same question. Why is tort reform a conservative issue? It's easy enough to understand why reforming Social Security, or even eliminating it entirely, is a conservative issue. After all, the core principles of conservative ideology are personal responsibility and limited government. But tort reform doesn't necessarily correlate with these values. The victims of torts are not irresponsible people, they are people who have been exposed to the negligence or malfeasance of others, and running a justice system is an appropriate activity for even the most limited of governments.
For conservatives, there are broader, systematic problems with the legal system. Large awards in tort claims create very significant problems, both practically and ideologically. First, awards for noneconomic damages and punitive damages can be so high as to completely ruin a business; second, these damages are unpredictable and expensive to insure against; third, the victims of torts do not deserve to benefit from damages assessed as punitive measures; fourth, large awards encourage more suits, even those of questionable merit, leading to high settlements even when the merits of a case are questionable; fifth, lawyers take anywhere from a third to over a half of the proceeds of these settlements and jury awards, which makes them the primary beneficiaries of the current tort system; and finally, large tort awards function as a practical risk for only one group of people - those who have a lot of money.
Not all of these concerns are particularly ideological, nor are they all that controversial. Liberals do not wish to see good businesses ruined and important jobs lost by tort awards that are grossly out of proportion with committed wrongs, and a liberal sense of justice is also offended when innocent people or corporations are forced to settle outrageous suits filed by shyster plaintiffs. On the other hand, two of these claims are so profoundly ideologically based that they must be examined more closely.
II.
The first ideological claim is that victims of torts do not deserve to benefit from the punitive component of a damages award. In a judgment in tort, a damage award has a number of components. The first component is compensatory damages, in which the responsible party must compensate the aggrieved party for damages both measurable and non-economic. The second component of an award is punitive damages. Generally, this type of award has the express purpose of punishing the guilty party as well as deterring others from engaging in similar behavior.
In between these two types of damages falls pain and suffering. Pain and suffering is the catch-all name for non-economic damages suffered by the plaintiff. It includes physical pain, emotional pain, and injuries which, though difficult to assign a dollar value to, are nonetheless quite real, such as amputations, blindness, or the loss of a child or parent. Though legally speaking, these non-economic damages are in the category of compensatory damages, there is certainly much in them that has a punitive flavor. They are not easily quantifiable, not consistent from case to case, and lead to much higher awards in jury trials than in cases adjucated solely by a judge. Because of these factors, such awards are more easily viewed as arbitrary and unjust, instead of being seen as a woefully inadequate substitution for the just compensation that mere humans simply cannot provide. It is these claims which the Bush administration is currently seeking to cap, though the administration has also called for caps on punitive damages.
In seeking to cap pain and suffering claims, the administration is making an audacious claim itself. It is asserting that $250,000 (the proposed cap) is always sufficient to cover any non-economic claim. No matter what your claim, from psychological damages inflicted by a pedophile priest, to the lifelong scars, both physical and emotional, of a wrongful amputation, to the tragic and senseless loss of a child's life through malpractice, to the savage poisoning of an entire community and its children by the willful dumping of toxins into their drinking water, all are resolved with a cool quarter million from the central office. There's something horrible about knowing that after thousands of years of exploring human suffering in art, literature, law, and politics, we've finally discovered that it's worth, at most, $250,000.
On an even more fundamental level, the first question to ask is not what the appropriate cap number is, but whether capping is appropriate at all. If the problem is that juries are making bad decisions, the solution would be to provide better guidelines to them, or to make their judgment reversible. In fact, this already occurs, and most massive judgments are reduced, in many cases by more than 50%, either on appeal or as part of a negotiated settlement to avoid an appeal. If the problem is that companies are forced into settlements for cases that have little merit, expand the use of administrative law judges for initial judgments on the merits of a case, or increase the penalties for lawyers who bring frivolous claims. Limiting the damages is the sort of solution that guarantees only one truth - that defendants will pay out less money to victims.
Some stop that analysis at this point, chalk the whole argument up to simple greed and politics as usual, and carry on with their day. But the actual issue is more insidious. By seeking to keep money in the pockets of defendants, conservatives are actually attempting to destroy the power of the judicial system to oversee government and business in any meaningful fashion. Our judicial system, as it currently operates, is a key participant in the shaping of our law. Perhaps this is unsurprising - one would expect that the legions of intelligent, educated and accomplished men and women who devote their lives to the practice and study of law would be welcomed to the process of shaping it. To conservatives it is abhorrent. Some of this can no doubt be attributed to the legal activism that led to racial integration, civil rights, and the uniquely American conception of the conjoined rights of self-expression and privacy. However, some of this detestation for American justice as currently practiced stems from the desire of conservatives for legislative authority.
One of the great lies of every conservative movement is that it is, in fact, conservative. Whereas progressive parties authorize their agenda on the power of good ideas, conservatives claim authority from the power of great people. By canonizing certain people, conservative movements create authority for certain political positions. We often encounter this argument in the form of the constitutional interpretive stance known as intent of the author. Conservatives argue that only the original intent of such great personages as the Founding Fathers has the necessary inherent rightness to guide us today in our understanding of the Constitution. Interpretations which expand this original intent, or which decide on limits to the application of this intent are unauthorized, regardless of whether they are logical. Logic is not the rule of decision, personal greatness is the rule.
What makes this position an internal lie is the fact that it's impossible to understand an intention without some level of interpretation. Lincoln, for instance, was a member of the Republican party, but his political beliefs were more in line with the positions of the Democratic party today. When Lincoln said that he was a Republican, what did he mean? Did he intend to say that he stood for the particular set of issue and positions held at that point in time by his party? Was he stating that the fundamental makeup and structure of the Republican party was superior to other parties? Either position is defensible, and neither is, of itself, conservative. If you wish to sanctify the current positions of the Republican party, you refer to it as the party of Lincoln in this second sense, and claim an inherent and essential rightness to a particular sort of affiliation. If you wish to attack the current positions of the party, you declare that it has betrayed the heritage of Lincoln, thus defining Lincoln's heritage as one of specific ideas and policy goals rather than type of affiliation.
Conservative groups wind up basing their authority on whichever historical figures or tradition is most suitable to the policy goals which conservatives currently stand for. Given that the current structure of the judiciary has left it as the sole watchdog over corporate America, and the underfunding of our justice system has forced it to make strategic decisions regarding commitment of resources to any particular prosecution, it is no surprise that judgments that are out of proportion with the damage caused are a regular feature of our justice system. Only the threat of catastrophic lawsuit serves to incentivize actual following laws intended to protect powerless individuals. By seeking to eliminate this last line of protection, conservatives seek to overthrow basic principles of human dignity and rights in favor of a one-size-fits-all $250,000 commoditization of human suffering and corporate responsibility.
III.
The second ideological claim of conservatives is that large judicial awards serve as a threat to only one class of people - the wealthy. As such, they are inherently unfair, because they select out a group for punishment without seeking to determine their culpability. At first glance, this claim has some moral appeal. All doctors pay high insurance premiums, regardless of whether they've done anything wrong. But this result is actually a function of the insurance industry and the desirability of pooling risks. In order to make sure that any person who wishes to practice medicine can reimburse those to whom he causes injury, we require that medical practitioners carry insurance. By doing so, we inevitably wind up having innocent doctors subsidize the guilty, but that's a preferable outcome to having guilty doctors who cannot compensate their victims.
What's puzzling is that it's not as though capping claims in some way resolves this alleged moral claim that innocents are being unfairly punished. For one, it is inevitable that people pay a price for their affiliations. Though there are many honorable lawyers in this country, they all suffer the slings and arrows brought on by the shameful actions of their less-honorable colleagues. But more to the heart of the matter, capping claims doesn't mean that doctors pay less for their insurance. All that capping claims does is slightly reduce the cost of providing health care (by about 2%, according to the most recent study by the Congressional Budget Office), and passes that savings on to insurance companies. Even if companies do pass these savings on to customers, something which has not occurred in states that have adopted caps, innocent doctors will still subsidize guilty doctors - it'll just cost two cents less on the dollar.
In other words, the moral claim is not resolved by the proposed solution, from which one can infer that the actual claim is something other than the moral claim. The actual claim is identical to the one made in tax policy, and it is a fairness claim. Basically, it is a rejection of the notion most recently popularized by the wild success of the Spiderman movies, in which Peter Parker is forever guided by the lesson of his uncle and adoptive father that "with great power comes great responsibility." For conservatives, the emphasis lies solely on the personal. No matter how much power you have, you must have only personal responsibility - a duty to yourself and your family.
For those who don't have wealth and resources, meeting these responsibilities is a lifelong challenge. For the wealthy, it's simply a box that, once checked, leaves you free to do as you wish. The fact that you have great power is no reason to impute any more responsibility to you than any other person, or so the argument goes. Why should the wealth earned by the sweat of a distant relative's brows be a reason for you to face additional obligations and burdens? Certainly, self-respect may require some charity work or volunteerism, but that's purely a personal choice. If you can sleep well at night without giving up a minute of your time or a penny of your fortune, why, everyone has the right to dislike you, but none has the right to force you to give what is yours.
This wholesale abdication of responsibility is the actual goal of the conservative, and it is bound up in the faith in a higher judgment. Let the greedy man be greedy, let the oppressive man oppress. All will one day come to judgment for their actions, if not in this world then most certainly in the next, and all the aggrieved shall have a healing of their wounds, a comforting of their spirit, and an eternal life in Christ. Forget the rest of the village, just worry about your family. If everyone just worried about themselves, everyone would be fine. Let's just ignore the inconvenient facts that not everyone can take care of themselves, or that for some, taking care of their own is achieved most easily by aggrieving others.
What the Conservative movement holds out to all is the hollow veneer of affiliation. To most of us, affiliation with something greater than yourself is an ennobling act, one in which you share the burdens of others, invest in achievements to benefit more than just yourself, and find identity and appreciation in a community of people who care about one another. Conservatism offers the lie - it offers affiliation, true, but the community of conservatives is bound up by only one shared value: selfishness and isolation.
0 comments
In writing the previous article, I did a lot of research into both tort reform and Social Security reform, and as I did my research, I kept coming back to the same question. Why is tort reform a conservative issue? It's easy enough to understand why reforming Social Security, or even eliminating it entirely, is a conservative issue. After all, the core principles of conservative ideology are personal responsibility and limited government. But tort reform doesn't necessarily correlate with these values. The victims of torts are not irresponsible people, they are people who have been exposed to the negligence or malfeasance of others, and running a justice system is an appropriate activity for even the most limited of governments.
For conservatives, there are broader, systematic problems with the legal system. Large awards in tort claims create very significant problems, both practically and ideologically. First, awards for noneconomic damages and punitive damages can be so high as to completely ruin a business; second, these damages are unpredictable and expensive to insure against; third, the victims of torts do not deserve to benefit from damages assessed as punitive measures; fourth, large awards encourage more suits, even those of questionable merit, leading to high settlements even when the merits of a case are questionable; fifth, lawyers take anywhere from a third to over a half of the proceeds of these settlements and jury awards, which makes them the primary beneficiaries of the current tort system; and finally, large tort awards function as a practical risk for only one group of people - those who have a lot of money.
Not all of these concerns are particularly ideological, nor are they all that controversial. Liberals do not wish to see good businesses ruined and important jobs lost by tort awards that are grossly out of proportion with committed wrongs, and a liberal sense of justice is also offended when innocent people or corporations are forced to settle outrageous suits filed by shyster plaintiffs. On the other hand, two of these claims are so profoundly ideologically based that they must be examined more closely.
II.
The first ideological claim is that victims of torts do not deserve to benefit from the punitive component of a damages award. In a judgment in tort, a damage award has a number of components. The first component is compensatory damages, in which the responsible party must compensate the aggrieved party for damages both measurable and non-economic. The second component of an award is punitive damages. Generally, this type of award has the express purpose of punishing the guilty party as well as deterring others from engaging in similar behavior.
In between these two types of damages falls pain and suffering. Pain and suffering is the catch-all name for non-economic damages suffered by the plaintiff. It includes physical pain, emotional pain, and injuries which, though difficult to assign a dollar value to, are nonetheless quite real, such as amputations, blindness, or the loss of a child or parent. Though legally speaking, these non-economic damages are in the category of compensatory damages, there is certainly much in them that has a punitive flavor. They are not easily quantifiable, not consistent from case to case, and lead to much higher awards in jury trials than in cases adjucated solely by a judge. Because of these factors, such awards are more easily viewed as arbitrary and unjust, instead of being seen as a woefully inadequate substitution for the just compensation that mere humans simply cannot provide. It is these claims which the Bush administration is currently seeking to cap, though the administration has also called for caps on punitive damages.
In seeking to cap pain and suffering claims, the administration is making an audacious claim itself. It is asserting that $250,000 (the proposed cap) is always sufficient to cover any non-economic claim. No matter what your claim, from psychological damages inflicted by a pedophile priest, to the lifelong scars, both physical and emotional, of a wrongful amputation, to the tragic and senseless loss of a child's life through malpractice, to the savage poisoning of an entire community and its children by the willful dumping of toxins into their drinking water, all are resolved with a cool quarter million from the central office. There's something horrible about knowing that after thousands of years of exploring human suffering in art, literature, law, and politics, we've finally discovered that it's worth, at most, $250,000.
On an even more fundamental level, the first question to ask is not what the appropriate cap number is, but whether capping is appropriate at all. If the problem is that juries are making bad decisions, the solution would be to provide better guidelines to them, or to make their judgment reversible. In fact, this already occurs, and most massive judgments are reduced, in many cases by more than 50%, either on appeal or as part of a negotiated settlement to avoid an appeal. If the problem is that companies are forced into settlements for cases that have little merit, expand the use of administrative law judges for initial judgments on the merits of a case, or increase the penalties for lawyers who bring frivolous claims. Limiting the damages is the sort of solution that guarantees only one truth - that defendants will pay out less money to victims.
Some stop that analysis at this point, chalk the whole argument up to simple greed and politics as usual, and carry on with their day. But the actual issue is more insidious. By seeking to keep money in the pockets of defendants, conservatives are actually attempting to destroy the power of the judicial system to oversee government and business in any meaningful fashion. Our judicial system, as it currently operates, is a key participant in the shaping of our law. Perhaps this is unsurprising - one would expect that the legions of intelligent, educated and accomplished men and women who devote their lives to the practice and study of law would be welcomed to the process of shaping it. To conservatives it is abhorrent. Some of this can no doubt be attributed to the legal activism that led to racial integration, civil rights, and the uniquely American conception of the conjoined rights of self-expression and privacy. However, some of this detestation for American justice as currently practiced stems from the desire of conservatives for legislative authority.
One of the great lies of every conservative movement is that it is, in fact, conservative. Whereas progressive parties authorize their agenda on the power of good ideas, conservatives claim authority from the power of great people. By canonizing certain people, conservative movements create authority for certain political positions. We often encounter this argument in the form of the constitutional interpretive stance known as intent of the author. Conservatives argue that only the original intent of such great personages as the Founding Fathers has the necessary inherent rightness to guide us today in our understanding of the Constitution. Interpretations which expand this original intent, or which decide on limits to the application of this intent are unauthorized, regardless of whether they are logical. Logic is not the rule of decision, personal greatness is the rule.
What makes this position an internal lie is the fact that it's impossible to understand an intention without some level of interpretation. Lincoln, for instance, was a member of the Republican party, but his political beliefs were more in line with the positions of the Democratic party today. When Lincoln said that he was a Republican, what did he mean? Did he intend to say that he stood for the particular set of issue and positions held at that point in time by his party? Was he stating that the fundamental makeup and structure of the Republican party was superior to other parties? Either position is defensible, and neither is, of itself, conservative. If you wish to sanctify the current positions of the Republican party, you refer to it as the party of Lincoln in this second sense, and claim an inherent and essential rightness to a particular sort of affiliation. If you wish to attack the current positions of the party, you declare that it has betrayed the heritage of Lincoln, thus defining Lincoln's heritage as one of specific ideas and policy goals rather than type of affiliation.
Conservative groups wind up basing their authority on whichever historical figures or tradition is most suitable to the policy goals which conservatives currently stand for. Given that the current structure of the judiciary has left it as the sole watchdog over corporate America, and the underfunding of our justice system has forced it to make strategic decisions regarding commitment of resources to any particular prosecution, it is no surprise that judgments that are out of proportion with the damage caused are a regular feature of our justice system. Only the threat of catastrophic lawsuit serves to incentivize actual following laws intended to protect powerless individuals. By seeking to eliminate this last line of protection, conservatives seek to overthrow basic principles of human dignity and rights in favor of a one-size-fits-all $250,000 commoditization of human suffering and corporate responsibility.
III.
The second ideological claim of conservatives is that large judicial awards serve as a threat to only one class of people - the wealthy. As such, they are inherently unfair, because they select out a group for punishment without seeking to determine their culpability. At first glance, this claim has some moral appeal. All doctors pay high insurance premiums, regardless of whether they've done anything wrong. But this result is actually a function of the insurance industry and the desirability of pooling risks. In order to make sure that any person who wishes to practice medicine can reimburse those to whom he causes injury, we require that medical practitioners carry insurance. By doing so, we inevitably wind up having innocent doctors subsidize the guilty, but that's a preferable outcome to having guilty doctors who cannot compensate their victims.
What's puzzling is that it's not as though capping claims in some way resolves this alleged moral claim that innocents are being unfairly punished. For one, it is inevitable that people pay a price for their affiliations. Though there are many honorable lawyers in this country, they all suffer the slings and arrows brought on by the shameful actions of their less-honorable colleagues. But more to the heart of the matter, capping claims doesn't mean that doctors pay less for their insurance. All that capping claims does is slightly reduce the cost of providing health care (by about 2%, according to the most recent study by the Congressional Budget Office), and passes that savings on to insurance companies. Even if companies do pass these savings on to customers, something which has not occurred in states that have adopted caps, innocent doctors will still subsidize guilty doctors - it'll just cost two cents less on the dollar.
In other words, the moral claim is not resolved by the proposed solution, from which one can infer that the actual claim is something other than the moral claim. The actual claim is identical to the one made in tax policy, and it is a fairness claim. Basically, it is a rejection of the notion most recently popularized by the wild success of the Spiderman movies, in which Peter Parker is forever guided by the lesson of his uncle and adoptive father that "with great power comes great responsibility." For conservatives, the emphasis lies solely on the personal. No matter how much power you have, you must have only personal responsibility - a duty to yourself and your family.
For those who don't have wealth and resources, meeting these responsibilities is a lifelong challenge. For the wealthy, it's simply a box that, once checked, leaves you free to do as you wish. The fact that you have great power is no reason to impute any more responsibility to you than any other person, or so the argument goes. Why should the wealth earned by the sweat of a distant relative's brows be a reason for you to face additional obligations and burdens? Certainly, self-respect may require some charity work or volunteerism, but that's purely a personal choice. If you can sleep well at night without giving up a minute of your time or a penny of your fortune, why, everyone has the right to dislike you, but none has the right to force you to give what is yours.
This wholesale abdication of responsibility is the actual goal of the conservative, and it is bound up in the faith in a higher judgment. Let the greedy man be greedy, let the oppressive man oppress. All will one day come to judgment for their actions, if not in this world then most certainly in the next, and all the aggrieved shall have a healing of their wounds, a comforting of their spirit, and an eternal life in Christ. Forget the rest of the village, just worry about your family. If everyone just worried about themselves, everyone would be fine. Let's just ignore the inconvenient facts that not everyone can take care of themselves, or that for some, taking care of their own is achieved most easily by aggrieving others.
What the Conservative movement holds out to all is the hollow veneer of affiliation. To most of us, affiliation with something greater than yourself is an ennobling act, one in which you share the burdens of others, invest in achievements to benefit more than just yourself, and find identity and appreciation in a community of people who care about one another. Conservatism offers the lie - it offers affiliation, true, but the community of conservatives is bound up by only one shared value: selfishness and isolation.
Comments:
Post a Comment
