Writing for Harper's last month, Ralph Nader issued a warning: Tort law is dying. In combating ambulance chasers, malpractice premiums, and frivolous lawsuits, we went too far. Tort reform became tort deform. The public was played, hustled into dismantling its Seventh Amendment right to a jury trial.
Too bad. By making negligence costly through the threat of lawsuits, tort law assures us -- visiting a theme park, driving a car, taking a prescription drug -- that we're safe. It fills the gap between legislative failures and market failures. It allows the poorest victims to sue, since plaintiff's attorneys aren't compensated unless they win. It operates democratically, transferring decision-making power from elites to lay jurors, using subpoenas to force even the most powerful actors to disclose wrongdoing.
President Obama once said that he's not against all wars, only dumb wars. Similarly, I'm not against all tort reform, only dumb tort reform -- capping damages at unjust levels, forcing injured parties to forego public trials for private arbitration, allowing tort claims to be contracted away via esoteric clauses in War and Peace-length contracts, and so on.
Unfortunately, today's politicians are divided by politics yet united by cowardice, so even the dumbest tort reform is allowed to dilute our protections. Politicians just don't want to stand up against the varied interests lined up against tort law.
Despite his own political forays, Ralph Nader is different. He embodies the elusive ideal of attorney as "advocate." He fights for tort law precisely because it shifts power from elites to juries, our most democratic institution. Just glancing at his Harper's piece, you can tell he has the public at heart, that he's too humble to elevate self-interest over ethics. I also speak from experience -- two years ago, upon introducing myself to "Mr. Nader," the first thing he said was, "Call me Ralph." Those three words capture his essence. The "unreasonable man," who interrupts his hectic days to advise my work on the Harvard Law Record (a student paper where he first championed consumer rights), is unreasonably humble.
So: Ralph is a politician without the politician's personality -- a public servant instead of a political hack. Yet the public has heeded lobbyist-owned serfs instead of politically-courageous advocates like Ralph. Why?
No one is more knowledgeable about the dangers of a flagging tort system than Ralph Nader. Before he published his 1965 Unsafe at Any Speed, automobile safety was lagging. Effective statutory protections were nonexistent -- legislators cared more for the good graces of industry than the lives of those they supposedly represented. So the sole safeguard came from us--"we the people," availing ourselves of the law of torts, bringing private lawsuits to vindicate public rights.
Cars are regulated now, but history's repeating itself. As Ralph writes, "[n]ew technologies fraught with risk ... robotics, artificial intelligence, biotechnology, and nanotechnology ... provide no statutory safeguards to speak of." This time, we can't even vindicate our own rights through private action; tort law was too diluted by post-60s tort deform. There's been an anti-democratic cycle in which, deprived of plaintiffs, judge-made common law is lagging further and further behind fast-changing technology. In other words, even though lawmakers are too craven to do their jobs -- to make law, like Congress did after Unsafe at Any Speed with the 1966 National Traffic and Motor Vehicle Safety Act -- private citizens can't do legislators' jobs for them because their only effective means, tort law, is grievously wounded.
To what can we attribute our enfeebled law of torts? To ceaseless assaults by right-wing lobbyists? To the propensity to distort the facts of cases like the infamous "McDonald's coffee case," and to focus instead on instances of excessive compensation rather than life-changing accidents where potential plaintiffs never received restitution? (Only 2 percent of victims ever sue.) To a deficit of judicial expertise concerning new, dangerous technologies?
The answer, like all right answers, is complex. Yet in the same way cars resembling "psychosexual pornography" killed for decades until Ralph's advocacy spurred the 1966 Safety Act, modern technologies are proliferating too quickly for legislatures to react. Today's Congress is even more politically divided, even more united by obsequious serfdom to special interests.
Lawmakers have failed us again, just like they did in the 60s. So we the people must stop deforming tort law. We must reform it in a manner that increases its abilities. We must preserve our right to utilize courts, set up by and for the people. We must engage in that alternative yet crucial form of democratic change -- private lawsuits judged by lay juries. Only case-by-case adjudication developing "the common law" can fill the vacuums left by craven legislatures. Only courtrooms can provide forums where victims are nominally equal to special interests on the other side of a case. The Framers enacted the Seventh Amendment for a reason. Do not let lobbyists reduce it to what its sponsor, James Madison, called a "parchment barrier." Fundamental rights like the jury right must be real, not aspirational.
Damages can be excessive, stifling the market, but tort reform has propelled the law too far in the anti-plaintiff direction. Though market loss is a motive for corporate and professional responsibility, it's inadequate. Human greed just as often feeds profit-motivated negligence. Only the threat of a lawsuit can sufficiently change the profit-calculus to favor consumers, forcing companies and negligent professionals to internalize the price of wrongful injury.
Harvard Law Dean Roscoe Pound stressed that though "law must be stable," it "cannot stand still." There are abuses in tort law, as there are in all legal fields. Yet like criminal law, tort law's chief function is to protect us. I fear that if the threat of monetary loss via lawsuit is further eroded, we will face human loss. How tragic. As Ralph notes, "[t]his country is unique in having a marvelous right to trial by jury that has been lauded historically by left and right, from Thomas Jefferson to Winston Churchill to William Rehnquist. That right ... requires a most robust defense."
Follow Ralph's lead. Defend your Seventh Amendment rights.