Can America get back to work without tort reform?
It seems like an odd question. With a global pandemic, panicked populations, and increasingly authoritarian local governments all pushing us to stay at home, who wants to think about tort law?
The answer goes to the very heart of who we are as a country, why we've reacted to the CCP Virus as we have, and who we wish to become when this particular crisis is over.
From ancient times onward, tort law has been the place that societies turn to ask the question: Who is to blame? The purpose of tort law is twofold: One, it motivates people to be careful, so that their actions (or inactions) don't harm others. Two, it compensates those who suffer harm through no fault of their own.
Each society must determine for itself where it draws the appropriate lines. How careful do we want people to be? What sorts of behavior should we characterize as careless, negligent, reckless or even criminal? Who should we hold responsible when something goes wrong?
Tort law thus reveals a society's collective attitude towards risk.
Contemporary American society is extremely risk-averse. The moment we experience a negative outcome, Americans have learned to ask: Who can we sue? For those who have not internalized the message themselves, an entire cottage industry of tort lawyers is eager to push the question upon them.
The process has become commonplace: We quickly run through the list of those bearing even the most tenuous connection to the negativity that has befallen us; if any of them have deep pockets, we have our answer.
We've become a society of fearful victims, eager to avoid personal responsibility while assigning blame to those most likely to provide compensation. So when we awoke one day to learn of a new virus that might result in millions of American deaths, our reactions were predictable.
First, we had to express our extreme risk aversion by isolating ourselves, shuttering our economy, and deriding anyone with the temerity to suggest that perhaps we had overreacted.
Then we had to find someone to blame. The Chinese Communist Party (CCP) — which is clearly responsible for the viral spread and may well be responsible for the virus itself — appears unsuitable. It's too hard to sue a foreign government, and even harder to collect if you win. The World Health Organization (WHO) — which helped spread CCP misinformation — is an even tougher litigation target.
American government is a bit more promising — at least there are far more mechanisms for lawsuits and collections — but probably not under tort law. At the end of the day, most challenges against the federal government are likely to lie in administrative law, and most of the challenges against states and municipalities are likely to hinge on their obscene suppression of civil liberties.
No, when it comes to assigning blame, Americans are most likely to turn where they usually turn: They will sue "offensive" neighbors, "faceless" corporations, and "heartless" insurance companies.
It's not hard to guess what will happen when local governments begin to let businesses reopen. Who will go first? Which restaurants, bars, movie theaters, churches, schools or offices will open on day one? Who will patronize such establishments? Clearly — on both sides — those with the greatest tolerance for risk. Predictably, someone will get sick — and sue. Were those who reopened first reckless? Negligent? Should they be held liable? How will their insurers react?
While we're at it, how about the folks who've diverted their efforts towards addressing the pandemic? Can anyone doubt that we're going to see a wave of product liability suits for products rushed to market with less testing and quality control than usual?
Under normal circumstances, American risk aversion — as reflected in our tort system — imposes massive costs on society. This pandemic, however, has allowed that risk aversion to rule the country. It has destroyed our economy, thrown millions out of work, and set the stage for waves of bankruptcy, suicide, divorce, child abuse, anxiety, depression, addiction and worse. It deters those who wish to help, empowers local authoritarians (from governors and mayors to homeowners' association boards and neighborhood tattletales), and promises imposes costs on those hoping to aid the economic recovery.
When we are again allowed to crawl out of our luxury bunkers, only the brave few will go first. America needs to find ways to cheer and reward their bravery. That will require a cultural change. Because as things stand, we are far more likely to deride them, blame them, and sue them into oblivion. It's what any victim culture would do.
So can America get back to work without tort reform? The question is not as odd as it seems.
Bruce Abramson is the President of Informationism, Inc., a Senior Fellow at the London Center for Policy Research, and the founder of the American Restoration Institute. Read Bruce Abramson's Reports — More Here.
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