Tort reform is not about frivolous lawsuits. It's not about the costs of medical malpractice insurance. A sincere reformation of the legal system is indeed necessary, but we're missing the point in which to start.
For the first time in many years the concept of tort reform is front-and-center in the debate on domestic issues in America. I applaud the notion, but I believe the debate has focused on reforming the wrong characteristics of the our acrimonious civil litigation industry, as well focused on the wrong solutions.
Ok, before this becomes fuel for an "us-against-them, the-little-people-against-the-man" contest- which it is actually not- lets get a few things out of the way.
Generally, when people think of a fight between The Little Guy and The Big, Bad Corporation, they assume they fit into the Little Guy category. I suppose it makes sense: most people don't run large corporations. Hell, most people don't even have stock in large corporations. This, however, is a rather faulty and short-sighted examination of the entirety of the debate.
Without getting too deep into Economics 101, its important that we shed the standard populist vs. capitalist trap that tends to place everyone into a single category, presumably isolated from the drawbacks, risks, and benefits of the other.
Simply put, we're all The Little Guy and we're all The Big, Bad Corporation. To assume otherwise- to believe one's economic status, political beliefs, career, or other characteristics place them on a single de facto side in such a debate- ignores the irrefutable interconnectedness of economics.
We all buy products, we all want them to be safe, and we all want them to be inexpensive. We all have jobs at companies. Irregularities and imbalances in the distribution of wealth aside, the bulk of everyone's income is a result of capitalism working correctly and efficiently.
The first problem in this debate on tort reform is perception. When the concept of tort reform and civil litigation comes up, people immediately think of the idiots who sue because their coffee is too hot, or corporations who refuse to admit their cars blow up on impact. All interesting stories, but essentially rare and irrelevant.
This is why, in the context of tort reform discussions, I shy away from the term "frivolous lawsuits." There are, for sure, insanely frivolous lawsuits. On the other side of the coin, there are, for sure, a handful of lawsuits which could be described as heroic in nature- the classic taking-on of some corporation's truly maniacally dangerous practices. Spread across the vast middle- lawsuits which are not quite frivolous, and not quite seminal- is where the bulk of the socio-economic impacts, and problems, of our legal industry lie.
One (possibly unavoidable) problem with a legal system inside a free-market economy is that law itself becomes an industry. Conceptually, taking step back from the ins-and-outs of capitalism, and our specific flavor of capitalism, that's actually a rather peculiar position for a legal system- its goals supposedly being "justice" and not much else- within a society. Justice, which in concept is the "evening out" of socio-economic activities, is now a part of the free market, which works best when it is in a constant state of imbalance.
