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Taming the Tort Monster: the American Civil Justice System As a Battleground of Social Theory Michael L

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Taming the Tort Monster: the American Civil Justice System As a Battleground of Social Theory Michael L Brooklyn Law Review Volume 68 | Issue 1 Article 1 9-1-2002 Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory Michael L. Rustad Thomas H. Koenig Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Michael L. Rustad & Thomas H. Koenig, Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory, 68 Brook. L. Rev. 1 (2002). Available at: https://brooklynworks.brooklaw.edu/blr/vol68/iss1/1 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Brooklyn Law Review Volume 68 2002 Number 1 ARTICLES TAMING THE TORT MONSTER: THE AMERICAN CIVIL JUSTICE SYSTEM AS A BATTLEGROUND OF SOCIAL THEORY' Michael L. Rustadt & Thomas H. Koenig* 02002 Michael L. Rustad & Thomas H. Koenig. All Rights Reserved. Michael L. Rustad is the Thomas F. Lambert Jr. Professor of Law and Director of the Intellectual Property Law Program at Suffolk University Law School School. B.A. 1971, University of North Dakota; M.A. 1973, University of Maryland; Ph.D. 1981, Boston College; J.D. 1984, Suffolk University Law School; LL.M. 1986, Harvard University Law School. Thomas Koenig is Professor, Department of Sociology and Law, Policy and Society Doctoral Program, Northeastern University. A.B. 1971, University of California, Santa Cruz; M.A. 1973, University of California Santa Barbara; Ph.D. 1979, University of California, Santa Barbara. This article is dedicated to the memory of Thomas F. Lambert Jr. The authors would like to acknowledge the helpful comments of Robert Drinan, S.J. of Georgetown, Rick Abel of UCLA and Marshall Shapo of Northwestern, who made valuable suggestions that helped us to refine our argument. We would also like to thank Professor Duncan Kennedy of Harvard, who was a distinguished visiting professor at Suffolk during the Spring Term of 2002. Professors Stephen Hicks, Anthony Polito and Steve Eisenstadt of Suffolk University Law School provided us with challenging counterfactuals and critical feedback. Michael L. Rustad would like to thank Dean Robert Smith and Associate Deans Marc Perlin and Bernard Keenan for sponsoring this research with a 2002 summer grant. The authors also acknowledge the superb contribution of Catherine Parrish, Michele Kenney, Kyle Medley and the staff of the Brooklyn Law Review. Finally, we would like to thank Chryss Knowles for BROOKLYN LAW REVIEW [Vol. 68: 1 When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal.' Oliver Wendell Holmes Jr., The Path of the Law The 1960s television classic, Dark Shadows, was set in the fictional seaside village of Collinsport, Maine.2 The plot centered on mysterious events involving ghosts, witches, vampires and other supernatural beings that took place in the Collinswood family mansion.3 Like the Collinswood mansion, the American civil litigation system is also frequently depicted as existing in "the shadows of an unpredictable American tort monster." Fear of frivolous but financially devastating lawsuits has replaced the dread of supernatural creatures of the night." The tort monster allegedly stirs up interminable litigation, bankrupts U.S. companies and threatens our collective well- being.6 suggesting the Dark Shadows introduction and for other editorial suggestions. Danielle LaVita provided invaluable secretarial assistance. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897). 2 Craig Hamrick, TV Classic Keeps From Fading Into the Shadow, at http://www.geocities.com/TelevisionCity/9516/dark.html (last visited Oct. 28, 2001). 3 Craig Hamrick, The History of Dark Shadows, at http://www.darkshadow- sonline.comldso-dark.html (last visited Oct. 28, 2001). 4 Roger Clarke, Nasty, UnBritish and Short, Cloned Pets, Tort Monsters, INDEP. (London), Aug. 18, 2001, at 11 (commenting on "the shadow of this unpredictable American tort monster"). Jason S. Johnston, Punitive Liability: A New Paradigm of Efficiency in Tort Law, 87 COLUM. L. REV. 1385, 1386-87 (1987) ("Increasing popular disenchantment with our current tort system has paralleled academic criticism. Virtually no aspect of current tort doctrine has been immune to criticism and legislative reform. However, attention has been focused on spectacular punitive damages cases."); see also Stephen Daniels & Joanne Martin, Jury Verdicts and the "Crisis"in Civil Justice, 11 JUST. SYS. J. 321, 324-26 (1987) (describing tort reformers' use of apocryphal punitive damages stories to arouse public support and confirm notion of biased juries); Amanda E. Haiduc, Note, A Tale of Three Damage Caps: Too Much, Too Little and Finally Just Right, 40 CASE W. RES. L. REV. 825, 830 (1990) (asserting that non-economic damages are susceptible to manipulation by juries sympathetic to plaintiffs). 6 Michelin Has the Costly Experience of Costs and Damages, American Style, L.A. TRIB., Nov. 18, 1997, at 12. Insurance firms argue that the explosive growth of tort damages awards causes spiraling insurance rates. See, e.g., Edith Greene et al., Jurors' Attitudes About Civil Litigation and the Size of Damage Awards, 40 AM. U. L. REV. 805, 806 (1991) (discussing insurance industry's publicity campaign directed toward insurance crisis). The long-standing belief is that "poor jurors will gouge relatively wealthy defendants." Alan H. Scheiner, Note, Judicial Assessment of Punitive Damages, the Seventh Amendment, and the Politics of Jury Power, 91 COLUM. L. REV. 142, 164 n.l18 (1991). 2002] TAMING THE TORT MONSTER Dow Corning's CEO contends that his company was "devoured by the tort monster" as a result of uncontrolled lawsuits filed by silicone breast implant claimants.7 He despairs that "once you get caught in the system, you can't escape no matter how responsibly you try to resolve the issues."8 The dark "shadow of this unpredictable 'American Tort Monster" 9 has even been cited as a significant cause of the "downfall of America."0 Neo-conservative tort reformers widely invoke the politically successful image of a monstrously destructive civil justice system.11 The image of the corporation as victim of the tort monster is a clear example of what Martha Minow calls "victim's talk."' Professor Minow argues that neo-conservatives employ the claim of victimization as an ideological tool in law, civil rights acts, widely disparate fields such as criminal 3 anti-discrimination litigation, hate speech and tort law. "Victim's talk" in the tort arena is used not only to disavow responsibility for defective products, bad medicine and unsafe practices, but to sway the public against trial lawyers in general. Neo-conservatives often employ the theme of a "culture of victimization gone wild" to ridicule plaintiffs seeking compensation for mass torts. The tort reformers, for example, attacked the plaintiff in a landmark tobacco product liability 7 Richard Hazleton, The Tort Monster that Ate Dow Corning, WALL ST. J., May 17, 1995, at A21; see also Dow Corning'sBankruptcy Implants a Doubt, ST. LOUIS POST-DISPATCH, May 24, 1995, at 6B (quoting Richard Hazleton). 8 Hazelton, supra note 7, at A21. 9 Books, INDEP. (LONDON), Aug. 18, 2001, at 11. 10 Clarke, supra note 5; Marc Galanter, The Life and Times of the Big Six; Or, The Federal Courts Since the Good Old Days, 1988 WIS. L. REV. 921, 939 (noting that the insurance industry's "grim prognosis" that lawsuits are driving our country out of business rests on the assumption that product liability actions involve thousands of products and thus jeopardize American industry). " The term 'reform' suggests affirmative change that benefits society, such as strengthened consumer protection laws and heightened civil liability to improve the quality of goods and services. Consumer advocates, however, have long contended that tort reformers have little intention of pursuing these goals. They argue that the tort reform agenda instead promotes the aims of insurers and manufacturers. Indeed, tort reformers have tried to limit civil litigation options, reduce exposure to civil liability and enact legislation that allows industry to calculate its exposure in advance and pass the cost on to the consumer in the prices of goods and services. Andrew F. Popper, A One-Term Tort Reform Tale: Victimizing the Vulnerable, 35 HARV. J. ONLEGIS. 123, 125 (1998). Martha Minow, Surviving Victim Talk, 40 UCLA L. REV. 1411 (1993). 13 Id. at 1415. BROOKLYN LAW REVIEW [Vol. 68: 1 action by arguing that she should have taken personal responsibility for the cancer caused by her smoking rather than 14 blame the tobacco industry. Neo-conservative tort reformers use the claim that runaway juries victimize corporations as a public relations device. The imagery of corporate victimhood advances their goal of limiting corporate liabilities and cultivating popular opinion against injured claimants and their attorneys. 15 As the late poet Allen Ginsberg, noted, "[w]hoever controls the media-the images-controls the culture."6 This apt observation clearly applies to the tort reformers' campaign to redefine victimhood. The proponents of neo-conservative tort reform are winning the political struggle by portraying the corporation as victim of a litigation crisis. Corporate victimhood deflects attention away from the true victims: those who suffered from defective products, negligent medicine, investor fraud or unreasonably risky financial activities. Similarly, neo-conservatives redefined the term "reform" to mean caps and other limitations on recovery for injured plaintiffs to improve the functioning of the American civil justice system. Neo-conservative tort law has its origins in a skillfully organized and well-financed movement to sharply limit key tort rights and remedies such as punitive damages, modified duty, non-economic damages, multiple causation, joint and several liability, products liability and strict liability.
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