Conservertarian Bait-and-Switch
By I think that this part of Stephanie Mencimer’s first-round knockout of Stuart Taylor’s tort”reform” hackwork deserves special emphasis:
Even if the tort tax were an accurate reflection of the tort system, it cant be used to compare the American legal system to most other industrialized nations because most of those countries have higher taxes to pay for comprehensive social welfare systems as well as larger, bureaucratic regulatory systems that negate the need for much of what tort litigation does in this country.
This is something that far too often absent from debates about the tort system. When conservatives are opposing regulations, they argue that harm coming from corporate decisions should be left to the tort system. But when people actually try to use the tort system, they’re greedy ambulance-chasers trying to make a quick buck just because they had their intestines sucked out by a faulty pool filter or something. This is a staple of the Stuart Taylorses and Walter Olsons who use random anecdotes to shill for “tort reform.” (See here, for example.)
Obviously, something has to constrain self-interested behavior that does harm to individuals or creates negative externalities. And there’s no cost-free way of doing that. Now, some opponents of the current American legal system, such as Robert Kagan, specifically prefer the European model where these regulations are bureaucratic rather than legal, and is also honest about the tradeoffs. I don’t find this argument very useful because this model isn’t going to be replicated here, but it’s a fair argument. People like Taylor, on the other hand, who decry the costs of torts (and often exaggerate them) without pondering the alternatives are just unserious. In many respects, torts are an inefficient way of dealing with social problems, but just wishing the problem away doesn’t help. There are many problems with the arguments of tort “reformers,” starting with the fact that they tend to lie about the evidence and advocate solutions that have little connection to the problems they’re allegedly trying to solve, but this is one that also deserves attention.