Context — March 10, 2017, 1:41 pm

Tort Deform

“The assault by a thousand cuts never stops, but it’s hard for the public to see what is happening.”

As the Washington Post reported on Friday, Republicans in the House of Representatives are advancing legislation to reform tort law in the United States. Thursday evening, two bills narrowly passed along party lines: the Innocent Party Protection Act, which would move some lawsuits from state courts to the less sympathetic federal system, and the Fairness in Class Action Litigation Act, which would allow class-action lawsuits to proceed in federal court only if every person in the class had “an injury of the same type and scope.” Bills up for future consideration would require federal judges to sanction attorneys whose lawsuits are determined to be frivolous and put a $250,000 cap on compensation for “noneconomic damages” such as pain and suffering.

Republicans have defended the reforms as necessary to eliminate so-called junk lawsuits. But, as Harper’s Magazine contributor Ralph Nader wrote in CounterPunch, if the new measures become law, they would “undermine the sanctity of each American’s right to his or her day in court.”

Nader has long opposed efforts to limit plaintiff’s rights in the civil justice system. In “Suing for Justice,” originally published in the April 2016 issue of Harper’s Magazine, he described the virtues of tort law this way:

Tort law allows an individual who believes that he or she has been wrongfully injured in person or property to retain an attorney on a contingency fee, paid only if the plaintiff prevails. After a lawsuit has been filed, and has survived a defendant’s motion to dismiss, the plaintiff’s attorney may compel the defendant, be it a person, a corporation, or a city’s police department, to disclose factual information regarding the claim. State and federal procedures urge the contending parties to exchange all relevant information beforehand in an attempt to encourage settlements and expedite any eventual trial. The court proceedings, should there be any, are open to the press and the public. Verbatim transcripts of the trial testimony are made. In pursuit of what is called “truthful evidence,” attorneys for both sides can vigorously cross-examine witnesses. Settlement can occur at any time, but if one does not occur, the trial jury is responsible for returning a verdict and assessing damages. The judge has the authority, though it is rarely invoked, to reduce or increase the damages if he or she thinks the jury is way off base. The losing party can then appeal, again in open court. The media can track the proceedings from start to finish. No decisions by the other two branches of government come close to being so clearly refereed, so open, and so subject to public review.

Nader goes on to trace the long history of legislators’ efforts to undermine U.S. tort law by limiting corporate liability, banning punitive damages, and heightening burdens of proof. “Such statutes tied the hands of thousands of judges and juries, the only people who head, see, and evaluate the evidence in individual cases,” Nader wrote. “The assault by a thousand cuts never stops, but it’s hard for the public to see what is happening.”

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