Saturday, February 15, 2014

The Litigious Culture

NOTE: In addition to the eleven essays I already reposted from Random Notes, I discovered this essay while looking through the articles I posted right before that blog shut down. As it is relevant, I decided to add it to the links in my upcoming essay.

If there is one change we could make today that would help more than any other, it would be to eliminate the idea that the normal state of affairs is perfect safety. I suppose that needs a little explanation, so perhaps it would be better to say, I want people to stop believing that life is free of risk, and that, whenever anything goes wrong, someone should step in and make everything right. I will grant there are many differences separating us from the men and women of the 19th century who founded our government, but one of the largest differences is that they, and even most in the 19th century, accepted the simple fact that life entailed risk, mishaps were common, and that normally we had to help ourselves overcome misfortune.I a not going to claim that this mindset was the sole reason they created the government they did, or embraced the philosophies they chose, but it definitely played a part, or, to be more precise, the abandonment of that mindset played a large part in destroying those philosophies. 

There are, clearly, many expressions of this mindset, from the welfare state to the parading of sob stories on American Idol, but the most obvious embodiment of this concept is to be found in our courts, especially in the area of liability law, and I believe, if we are ever going to reform our state, one of the first steps is a reform of the tort system (and contracts as well), as doing so will go a long way toward changing how we view the world.

If you doubt this, simply suggest that people should not be allowed to sue a manufacturer of defective products if they signed a waiver. A few will probably nod in agreement, but I guarantee a goodly number will decry the unfairness of such a concept, asking why these unfortunates should suffer, and how we will help them if we eliminate such lawsuits. For that matter, perhaps even a few of my readers have had just such a reaction. All of which shows how far we have come. Rather than allowing individuals the right to be treated as adults, to use contracts to define their interactions and assume they know best what they do and do not want or need, instead we have assumed that, whenever misfortune befalls someone, the first responsibility of the state is to ensure someone pays for their misfortune.

The problem, of course, is to be found in our changed perspectives on life, specifically in two modern concepts. First, that life can be made risk free, or, if not, that it can be so arranged that any harm can be made right. Second, that the ideal is a state where any harm is immediately compensated, where, in essence, there are no consequences. 

What makes this so interesting is how much we have internalized these concepts. I bet, even as you read those lines, many of my readers found nothing objectionable in them. "Of course," many probably thought, "what is so bad about eliminating any risk from life? Or making sure we don't suffer from our mistakes?" It is a very modern mindset, and a common one, but also one greatly at odds with the perspective of those who founded our nation, and even those who lived but a few generations ago. And it is a mindset which is profoundly dangerous.

The dangers of this should be obvious, but, strangely, they are not. 

The first, and most obvious, is that risk can only be avoided entirely by limiting our choice of actions. Yes, we can try to compensate people for their injuries, but that is costly if we do not, simultaneously, try to limit people's riskiest behaviors. The consequence of which is,the much maligned nanny state. Which is somewhat surprising as many who decry the nanny state have no problem with our modern philosophy of risk avoidance.

A second problem, and almost as damaging, is the need to compensate those who do suffer a mishap. As we have chosen to do so through the civil courts, the tendency is to make compensation the responsibility of the wealthiest bystander. That is, the richest man present whose actions can be in somewhat plausibly linked to the harm. Of course, there is a lot of legal verbiage written to obscure this rather mercenary approach, but, oddly enough, the law journals themselves are much more open about their approach, and admit to questing after deep pockets. Oh, they excuse it by arguing the deepest pockets could probably do the most to prevent accidents, but, whatever the justification, law journals admit pretty openly that the riskiest thing to be is a rich man near an accident.

The quest for deep pockets has three consequences. First, a general drag on the economy, as wealth is dispersed, making it more difficult to gather the needed amounts to start new ventures or capitalize old. Second, it tends to cause firms to entirely avoid any field which is more likely to attract liability suits, leaving large swathes of the economy underdeveloped. Finally, it makes actual safety improvements, which tend to be found near accidents, extremely risky, and so makes improvements in safety the area of the economy least likely to find financing. In short, despite the arguments of the liability theorists, the current tort system decreases overall safety, rather than increasing it.

But even if we ignored the immediate consequences, there is one final question we need to ask. That is, do we want to eliminate risk? Risk exists for a reason. When we suffer harm, we know we have made a bad choice, the same way benefit teaches us we have done well. If we manage to eliminate risk, or to ensure immediate compensation, do we not run the risk of removing the forces which keep our economy improving? Think of what happened with the welfare state when we removed the consequences of unemployment, having more children than one could support and so on. By removing consequences, we made such actions easier to undertake, and as a result we got more of things we would otherwise have wished to avoid. And, if we remove consequences from the economy as  whole, do we not risk doing the same?

Many will argue that I overstate the condition of the present liability law, that they do not seek to eliminate risk, only to compensate those who suffered from wrongful actions. But the truth seems to be otherwise. When a person can sign a waiver, while being videotaped hearing an explanation of that waiver in her native language, and admit in court she would have tkane the medication whether or not the waiver had been offered*, and still prevail in court, we are not talking about informed consent or preventing negligent action, we have moved, as the tort theorists proposed, into the realm of social insurance, and that means nothing less than the attempt to eliminate risk, or, if you prefer, remove all consequences. And that is something we  do not want to do.


* To be completely honest, I conflated a few cases here, though there are a number of waiver cases where multiple approaches were tried, so this is not that far from the truth. Of course, this is not the case in all trials. There are still courts, and juries, who respect waivers, but that is because we are still in a state of flux. As time goes on, it becomes more and more common to find waivers, or the entire concept of informed consent, ignored entirely. As I said, it is not always the case, but just as contract was removed through legal subterfuge a few decades ago, at least when it came to tort liability, so too waivers and other protective measures are being quickly eliminated.

Originally posted in Random Notes on 2012/09/25.

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