Last week, Republican gubernatorial hopeful Asa Hutchinson spoke to the Political Animals Club. By all accounts, his speech was precisely what you would expect from a candidate for statewide office at this early stage of the campaigning: long on rhetoric, short on details, inoffensive as possible while still maintaining adherence to certain party lines.
However, one thing that did jump out from the talk was this:
We need a Republican governor who will lead our Republican majority legislature to pass reasonable tort reform legislation in order to compete in this coming jobs war.
(As Max already noted, this was an interesting, considering Hutchinson’s own nephew, Jeremy, had been one of the major killers of a tort-reform bill in the Arkansas legislature in 2013.)
When I first read Asa’s comments, my initial reaction was to write a post, pointing out that the tired argument about how our tort system threatens job creators with frivolous lawsuits, ultimately causing them to take jobs elsewhere, is a complete falsity that preys on how little people really understand about economics, the legal system in general, and business decision-making. After all, that’s an easy argument to make.
It dawned on me, however, that my dual public roles as a lawyer and a liberal blogger would cause some percentage of readers to dismiss the message because of their perception of the messenger. There wasn’t much sense in going that route. Especially when a much more interesting (and less-easily dismissed) angle exists to discuss tort reform:
A True Conservative would oppose Tort Reform.
Here’s what I mean: tort reform, as people like Asa and other Republicans talk about it, broadly refers to limiting the amount of money that people can recover for injuries or otherwise impairing their ability to bring civil suits for redress of wrongs (such as by shortening statutes of limitation, limiting choices of venue for bringing suits, or removing the right of a jury trial for certain kinds of cases). Based solely on the previous sentence, you can come up with at least five reasons why this would violate core conservative values.
1. Limiting the right to a jury trial is a direct assault on the Bill of Rights and the Arkansas Constitution. Under the Seventh Amendment, “the right of trial by jury shall be preserved” in all causes of action that existed at common law where the amount in controversy is greater than $20. Article 2, section 7, of the Arkansas Constitution is even more direct, stating, “The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.”
If we are to assume that Conservatives’ oft-repeated adoration of the Constitution is more than mere lip service, if we accept that Conservatives care about the entire Constitution and not just the Second Amendment, and if we buy that Conservatives’ actually believe in the Rule of Law, then it becomes impossible to logically justify any Conservative support of legal changes that would directly undermine something as basic as the right to trial by jury.
2. Tort Reform replaces local control with government oversight. When it comes to enforcing a communities sense of right and wrong and allowing citizens to protect their neighbors according to their best judgment, you cannot get more local or more direct than having 12 registered voters listening to evidence, rendering a verdict, and — where appropriate, in their collective judgment — imposing fines on someone who wronged a member of that community.
Importantly, the local jury also stands as a protector of the alleged wrongdoer. If the plaintiff does not prove that the wrongdoer was negligent, the jury can and should find in favor of the defendant. Just because a jury, convinced that the alleged wrongdoer was guilty, may impose a large penalty against the wrongdoer does not mean that system is flawed or in need of reform. Just the opposite; it means that the plaintiff and the defendant have been heard, and their rights evaluated, in line with what that particular community at that particular time considers to be right or wrong.
3. Tort Reform minimizes personal responsibility. We hear constantly from Conservatives, at least when discussing government assistance to the poor or unemployed, that no amount of government assistance is ever going to be enough where people refuse to behave responsibly; Conservatives stand for the idea that every person should ultimately take responsibility for their own lives and behaviors. Yet what is tort reform if not an insulation from personal responsibility for those who would behave irresponsibly?
One of the biggest tenets of Tort Reform is putting a cap on punitive damages (that is, money that goes beyond actual financial damages and is awarded to punish an egregious wrongdoer). No matter how grossly negligent the defendant was — he could be a doctor who amputated the wrong leg because he was attempting to do the surgery blindfolded — he can rest easy knowing that his legal liability is capped at an arbitrary amount, regardless of what a jury might consider his actual personal responsibility to be worth.
4. Tort Reform subverts the free market. Related to the previous point, but differing slightly, damages awards by a jury are the free market in microcosm. A jury hears the evidence and, if they decide in favor of the plaintiff, they assess the value of the plaintiff’s injuries. The market quite literally sets the cost of negligence.
Yet, where tort reform has been implemented, juries often aren’t even told about damage caps. They do their civic duty, impose whatever cost they (as proxy for the community marketplace) deem just, and then a judge reduces the amount to whatever the cap is. If someone suggested capping the amount of money that can be made where stock was sold in the free market, Conservatives would fight that idea tooth and nail. What would they embrace the same thing when it comes to courts?
5. Tort Reform is “Big Government” at its worst. Tort reform is, literally, the government saying, “we don’t trust people to make decisions that affect their community, so we’re going to impose arbitrary limits on what they can do.” Worse, tort reform is little more than a bailout for people and companies that the community has found negligent.
Conservatives oppose regulation as a general rule, whether it be in the financial sector, the environment, or industry. They oppose bailouts for banks and auto manufacturers. Those same Conservative principles should oppose damage regulations and bailouts that have a direct, tangible impact on regular people.
Now, none of the above is rhetorical gamesmanship. None of it is some lawyer twisting the meaning of things to reach a result he wants to reach. It is nothing more than application of long-espoused Conservative principles to the realities of tort reform. Strawmen like “job creation” and “lowering doctor’s malpractice rates” may sound good (despite being absolutely false), but they don’t change the fact that tort reform, as applied, should appall real Conservatives.
Hopefully, someone will mention this next time Asa or other allegedly conservative Republicans bring up tort reform as a positive goal.
 So easy, in fact, that I can summarize it in a footnote. A 2008 survey of members of the National Federation of Independent Businesses, a small-business lobbying group, asked the members to rate, in order of importance, 75 problems/priorities/aspects of business. “Cost and Frequency of Lawsuits/Threatened Lawsuits” came in 65th, one spot behind “Solid and Hazardous Waste Disposal.” By the 2012 survey, that concern had fallen all the way to #71, right behind “Using Social Media To Promote Business.” Simply put, “Tort Reform” as a necessary condition for job creation in a state is a meritless argument.