Modern Contract and Tort Law

Abstract:

In order to answer this question it is necessary to discuss the traditional situation and current situation about this aspect. Here it needs to discuss whether there is a need to reform tort law in the U.S. and whether such an undertaking is feasible or necessary. The terminology tort reform describes a change in United States civil law system to improve litigation efficiency or reduce litigation's adverse effects on the economy. It does not include reforms that would expand liability, such as laws that create new causes of action or that increase damage awards. Tort reform is a controversial subject and has been one of the most debated policy issues in recent times.

Answer:

Tort, in law, the violation of some duty clearly set by law, not by a specific agreement between two parties, as in breach of contract. That means tort is a wrongful act, not including a breach of contract or trust, that results in injury to another's person, property, reputation, or the like, and for which the injured party is entitled to compensation. The normal remedy is to order the defendant to correct the harm. In the American legal system, this usually means paying monetary damages so as to make the plaintiff whole. Traditional tort law does not punish the offender. Rather it attempts to direct the defendant toward rendering the plaintiff whole. The U.S. tort system is the most expensive in the industrialized world[1]. U.S. tort costs are 2.2% of Gross Domestic Product (GDP), substantially higher than that of other developed countries studied. U.S. The U.S. tort system returns less than 50 cents on the dollar and less than 25 cents for actual economic loss to claimants.

In order to answer this question it is necessary to discuss the traditional situation and current situation about this aspect. Here it needs to discuss whether there is a need to reform tort law in the U.S. and whether such an undertaking is feasible or necessary. The terminology tort reform describes a change in United States civil law system to improve litigation efficiency or reduce litigation's adverse effects on the economy. It does not include reforms that would expand liability, such as laws that create new causes of action or that increase damage awards. Tort reform is a controversial subject and has been one of the most debated policy issues in recent times.

Tort law has undergone several significant changes. The cumulative impact of all of these changes results in a significant threat to justice and the structure of civil society. The difficulty of establishing causation in modern environmental exposure cases is illustrated in the case Miller v. National Cabinet Co[2]. This was a lawsuit brought by the widow of a cabinetmaker who had died from leukemia. In order to win, Mrs. Miller had to prove that benzene could cause leukemia. Today we know there is a causal relationship between leukemia and exposure to benzene, but in 1960, at the time this case was decided, there was insufficient evidence of any such association. As a result, Mrs. Miller could not win her case.

Some courts will permit recovery for conduct that has not yet caused harm to the plaintiff but has increased the risk of harm in the future. A court may permit recovery for that increased risk but not for actual harm done. Other courts permit recovery for the plaintiff's fear of what might happen in the future due to the exposure.

Today the law of tort mainly, though not exclusively, concerned with ‘accidents’ arising in countless ways. However, it by no means provides their main, let alone exclusive, source of compensation. The continuing importance of the law of tort is due not only to the increase in the number of accidents, but also to the fact that the more developed a society becomes the more willing it apparently is to look sympathetically at a wider spectrum of complaints[3]. The phenomenon seems particularly propound in the United States, where one knowledgeable observer once remarked that: ‘few Americans, it seems, can tolerate more than five minutes of frustration without submitting to the temptation to sue’. Though the picture seems to have changed in the 1990s, and the pro-plaintiff verdicts apparently decreased significantly, tort reform is still a lively political issue in the USA[4].

The goal of tort reform should be to return to a system based on fault and causation that places blame on those who caused the damage and restores the plaintiff without punishing those who happen to be wealthy.

In the modern tort law system, plaintiffs advance their legal position by presenting themselves as victims. Individuals today are given a financial incentive to embrace the victim's role even when they are not genuine victims.

The goal of tort reform should be to return to a system based on fault and causation that places blame on those who caused the damage and restores the plaintiff without punishing those who happen to be wealthy.

Beginning in the 1970s, a new skepticism about the utility of litigation also arose among academics. Researchers in law and the social sciences argued that courts lacked the capacity to be good policy makers and that litigation wasn't a very effective way to make society more just.

Even many tort law professors, a group that had promoted the liberalization of liability in the 1950s and 1960s, were by the 1980s deeply troubled by the shortcomings of litigation as a means of compensating injury. Echoing their criticisms was a flurry of research on civil litigation that began in the 1980s, much of it supportive of antilitigation reforms. By the 1990s antilitigation reform even became the stuff of national politics, thanks largely to the efforts of Vice President Dan Quayle[5].

Now it needs to discuss about the reform & current position and alternative aspects of law reform. However, after long confusion it is now in stable condition. The term has acquired a broader rhetorical definition in political debates about tort reform.

Tort reform advocates argue that the present tort system is too expensive, that merit less lawsuits clog up the courts, that per capita tort costs vary significantly from state to state, and that trial attorneys customarily receive an unusually large percentage of the punitive damages awarded to plaintiffs in tort cases. Tort reforms posit that reforms can significantly reduce the costs of doing business, thus benefiting consumers and the public in the long run. However, the current tort system has a significant impact on national or global economies.

Some of the principal issues of tort reform:

In cases with multiple defendants, each defendant would be liable for their percentage of fault only. This abolishes "Picking the Deep Pocket," which can make one who is 10% culpable 100% liable in damages – just because he can pay.

Allowing the introduction of evidence during trial about insurance and other benefits an injured person has received or will receive after the injury.

Blocking survivors from filing a wrongful death lawsuit if the deceased person recovered damages while still alive.

Caps or limitations on punitive damages and non-economic damages.

Preventing lawyers from profiting from punitive damages, as contrary to public policy.

Whether lawsuits should be prohibited against products manufactured many years ago.

Loser pays. Among Common Law countries, only in the US is the losing party not responsible for the legal fees & costs of the prevailing party.

Generally removing incentives for speculative tort litigation.

Abolishing civil jury trials & placing damage awards in the hands of judges.

Putting an end to "Legislation through Litigation."

Getting bar associations & legislatures to end predatory practices and nuisance litigation.

The Governor's tort reform bill (The Civil Justice Reform Act of 1995, House No. 5232) proposes, among other things, a change in the statutory rate for calculating interest on awards[6]. To some extent, House No. 5232 would conform Massachusetts to Federal practice. The 52-week Treasury bill rate is used in most types of Federal cases to calculate post-judgment interest, compounded annually (28 U.S.C.A. Sec. 1961(a) and (b)).

First, the interest should compensate the plaintiff for the loss of the time value of money.

Second, the interest should be neutral in the sense that it should not affect the conduct of the case.

Third, determination of the interest should be a relatively simple process.

Fourth, the interest should or should not, depending upon your point of view, compensate the plaintiff for the risk of default on the judgment by the defendant.

Finally, we come to the question of whether plaintiffs should be compensated for bearing the risk of default. Plaintiffs will prefer compensation and therefore the option of using the defendant's borrowing rate. Defendants will prefer the Treasury rate.

This report examines three reforms to the U.S. tort system now under consideration in Congress. One proposal is targeted at the automobile tort system, while the other two consist of general tort reform. The three reforms are[7]:

Auto-Choice Reform

Early Offer: Contingency Fee Reform

Early Offer: Moore-Gephardt Reform

Each of these reforms addresses a different aspect of the legal system & the problem of burdensome tort costs. Each establishes procedural mechanisms, which have a relatively limited effect on existing state substantive tort law doctrines. In addition, under the terms of the proposed legislation now being drafted, states retain the right to opt out of any of the above reforms.

2005 heralded the long anticipated passage and signing into law by President Bush of the Class Action Fairness Act. The Act permits the transfer of large interstate class action lawsuits to federal courts, significantly reducing forum shopping by plaintiffs’ attorneys.

The majority of U.S. tort dollars are generated at the state level, and it is at this level that the most difficult battles for reform must be fought[8]. While some limited reform success came in 2004, monumental changes continue to be needed. Current efforts at state level tort reforms generally focus on a few critical areas such as capping non-economic damages, modifying the joint and several liability rules, restricting punitive damage awards, establishing minimum medical requirements for filing asbestos or silica claims, revising the collateral source rule barring recovery for obesity-based lawsuits & reinstating the state-of-the-art defense.

References:

Crier, Catherine, The Case Against Lawyers: How Lawyers, Politicians, and Bureaucrats Have Turned the Law into an International Instrument of Tyranny-and What We as Citizens Have to Do About It. New York: Broadway Books, 2002.

Shuman, Daniel W., "Making the World a Better Place Through Tort Law? " New York Law School Journal of Human Rights 10 (1993): 739.

Lawrence Chimerine and Ross Eisenbrey, The frivolous case for tort law change: Opponents of the legal system exaggerate its costs, ignore its benefits, Economic Policy Institute, May 17, 2005 (EPI Briefing Paper #157), retrieved March 31, 2007

Litigation is an Important Tool for Injury and Gun Violence Preventio “ Johns-Hopkins University Center for Gun Policy and Research Retrieved July 15, 2006”

Markesinis and Deakin, Tort Law, 5th Edition (2006), Clarendon Press-Oxford (Pg: 1-77)

Tillinghaust-Towers Perrin. Tort Costs Trends: An International Perspective, (New York, New York, 1995)

Jeffrey O'Connell, The Lawsuit Lottery: Only the Lawyers Win (New York: Free Press, 1979).