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.

Its really no surprise then that the legal industry in America cares a lot less about justice than it does money. Ok, that's a simplistic statement. It may not even be an altogether negative thing. It merely serves to frame an accurate picture of the structure of our legal system.

The legal industry- with a lot of help from government and regulation- is structured to ensure that money- a lot of it- is flowing through its system. The specific concepts of plantiffs or defendants, little guys or big corporations, justice or injustice, don't actually have a bearing on the economics of the industry. The money is there regardless of who wins.

The concept of an industry is never inherently wrong. Debating against the efficiencies of a free-market is almost always a losing battle, and there is no reason to believe free-market economics can't work in law as well. The problem, however, is that government mandates the existence of a legal industry. Because of this, the legal industry as a whole- unlike, say, the computer industry or the hair care industry- neither has competition, nor fear of drying up and going away.

The result of this paradoxical positioning of law in our free-market society is that legal expenditures, penalties, and rewards increase far beyond what it takes to simply "make things just." In other industries that's the recepie for success- to have more money flowing through the industry than the mere value of the product. But in law, where justice and evening-out are the goals, this becomes dangerous.

For starters, there is little benefit to the legal industry to ensure that rewards- which, again, are supposed to make things even- actually find their way to victims. You can debate the specific numbers all day long- amount of work involved in bringing a case, where real dollars actually split in real cases, and the reasoning behind all of these things. The end result is there is no other way for a victim to resolve legal conflicts and get justice other than using the legal industry, and the industry itself can only sustain itself with money not paid to victims.

This imbalance, in turn, causes law to be used as a weapon- a first line of defense- more often than a last-resort reaction to inequalities that cannot work themselves out. (The latter, I would argue, is the proper position of lawsuits in a society.)

Corporations, for example, often use lawsuits as part of their efforts to compete against other corporations. It's a simple way for companies to force other companies to spend money. Rarely was either party actually wronged. Hell, many times these cases are never decided.

An interesting offshoot of the massive expense involved in any legal proceeding is that individuals- people like you and I- have the same weapons at their disposal. One of the dirty little secrets of the American legal system is that anyone who feels wronged, or wants to feel wronged, for any reason, is protected from any risks you might think exist in bringing a lawsuit against another individual or company.

There is nothing preventing you- an everyday citizen- from plopping down a few hundred dollars to file a lawsuit against another individual or company for the mere purpose of forcing them to spend tens of thousands of dollars defending such a lawsuit. You don't even need a lawyer to be involved (it's called pro se litigation.) Considering the modern American attitude that everyone is a victim at some point in time, and every circumstance has a victor and victim, there are very few situations in which a particularly vengeful person can't find something to sue for. Sure, such cases may be thrown out fairly quickly- but that's not the point. The point is you vindicated yourself by forcing your enemy to part with quite a bit of money. It's a frightening amount of completely unchecked power the average citizen has.

The real problem with the current debate on tort reform, aside from being focused on anecdotal symptoms rather than the structure as a whole, is that problems are being approached with simplistic solutions such as limits on rewards and rules on who can bring lawsuits when. Unfortunately, with the solutions being proposed, there's a fairly good chance that- like with many government-centric solutions- everyone loses.

The legal system needs to be "checked." The problem with the current debate is that those in favor of tort reform want to "check" the problems of legal system, a result of massive regulation, with- low and behold- more regulation. You don't have to be much of a political scholar to understand that this pretty much never works.

If it is indeed impossible for the legal system to operate not as a money-making industry, but somehow outside of the free market, then the next-best solution is to "check" the legal system with the risks and rewards of the free market itself.

I believe two changes need to be made to the overall structure of the American legal system, the de-complexification of law and a loser-pays system.

There is a reason it cost hundreds of thousands of dollars to go to law school. There is a reason our legal statutes are the size of libraries. There is a reason very few people actually understand the minutia of most court cases- even those involving simple subjects. The complexity of laws and legal proceedings keep lawyers in business.

When presented with a conflict between two parties, your average judge or jury can most likely figure out right from wrong with no more than a few hours of explaination from either side.

The Constitution itself- a document from which all rules and laws are formed- is only a few pages long, and its fairly rare that the results of most criminal cases don't boil down to a few obvious sentences from the Constitution.

Why not run civil cases in the same manner? Two parties in a room, one tells their side of a story, the other then tells their side. No specialized legal language or maneuvers. Just right vs. wrong.

Does this make for a perfect legal system? No. But I would argue that there are, at worst, the same number of inconsistencies and injustices from a quick, simple, no-nonsense system, than are added with the intricacies our overly-complex system.

As well, the imperfections of a simpler system are, at least, more conducive to a proper outcome. In our current legal system, the results of a case are most often based on which lawyers perform best at being lawyers, and all the pomp and circumstance that goes with that. A simplified legal system- one that real people actually participate in, and affect the outcome of- not only ensures more accurate results, its much closer to what is ideal in a democracy.

The key here is that the whole thing becomes speedier and less expensive, and therefore less risky for everyone involved. Well, everyone except lawyers.

In America we've added a rather unique element to our judicial system. Unlike most other democratic countries, in America, if you bring a lawsuit against another person or company, and lose, you're not required to pay the winner's legal fees. However, if you happen to bring the suit and win, you'll most likely have your legal fees paid by the loser.

Seeing as the legal industry is just that- an industry- its really just standard marketing practice- your everyday "no risk, money back guarantee." The only differentiator here is who sues who- you only get the no risk guarantee if you decide to sue first You'd almost think we're inspiring people to be victims! Intended or not, this sort of imbalance of risk can do nothing but make bringing a lawsuit the preferred method of resolving conflicts over more risky free-market based methods.

This notion that a losing plaintiff never has to pay flies in the face of the entire concept of a justice procedure which supposedly can assess a monetary loss caused by any action, and if necessary, require an offending party to compensate the "victimized" party for that loss. If someone cannot possibly be a victim of a wrongful lawsuit- which is essentially what the legal system is saying- then how can we consider people who suffer property damage, damage to a reputation, or other such things victims who deserve retribution? What is the difference?

If the legal system is going to play in the free market, then the only way to ensure its done fairly is if the same concepts of shared risk are allowed to remain (a risk which would be lessened for all parties by making the whole system less complex anyway, as I mentioned previously). If you want to bring a lawsuit, you have to be prepared to suffer the consequences of, frankly, wasting everyone's time.

Some would argue that victims cannot obtain justice if there is a risk involved in obtaining justice. A valiant thought, but extremely short-sighted. For one, our current system is as ripe for abuse- and therefore ripe to victimize just as many people- as a system where risk may lessen a victim's desire to seek justice. However, considering we're not looking at changing any laws here, and the same wrongdoings by potential defendant companies or individuals is still considered just as wrong and punishable.

Lets face it, the goal here is not to protect victims from risk. Its to keep a healthy, well-marketed business running. Justice is supposed to be blind, and therefore shouldn't be giving any additional benefit to either side until a decision is made as to who is really a victim and who is not. And beyond mere fairness, shared risk always lessens risk. Only when both parties have a vested interest in keeping costs (and therefore risk) down, do they make any effort to do so.

Lets get off the "frivolous lawsuit" bandwagon for a second. Lets forget about specific rewards, specific cases, and specific victims. Lets take a step back and look at the entirety of the system- a system which seeks out victims to keep a business model running.

Generally speaking, every legal problem has only two possible outcomes. Simple stuff, in the end. It's the path to that outcome that is the issue. In America, we have a legal industry invested in making sure that path is as lengthy and complex as possible. This complexity drives up costs and legal rewards not only to pay for itself, but to ensure the health of the legal industry. And, oh yeah, justice is sometimes served.

But that's not actually how justice really works. The Founding Fathers- the guys who build an entire government on a few pages of rules and ideas- knew that justice, in the end, is simple.