Serious Tort Law Reform

Tort law is a form of collective intervention into social and economic affairs that carries with it substantial costs, both public and private. These costs include higher prices for goods and services, higher taxes, and the socially undesirable consequences that tort law has on people's behavior such as the failure of companies to develop and introduce products the public wants, the wasteful and unnecessary testing that doctors engage in for the purpose of avoiding lawsuits, and the excessive defensive litigation strategies that lawyers and insurance companies use to defeat even those claims that are well justified under the current rules. We judge other forms of government action, like the public transportation system, the Social Security system, the national parks system, or any important system of government regulation such as the Food and Drug Administration and the Federal Aviation Administration, by comparing their costs with their benefits. So, too, should we judge tort law. Evaluated in this way, I have concluded that tort law generates more perverse behavior than desired safety, that it is an intolerably expensive and unfair system of compensating victims, and that in practice it fails to serve any common-sense notion of justice.1 In short, I do not think we, as a society, are getting our money's worth. In the past, when the perceived social problem was that individuals deliberately were injuring others, making the injurer pay personally for the harm done seemed only just. It probably was the minimum punishment that a wrongdoer deserved. Further, it may have