Justinian Lane writes in the comments: “I oppose any tort reform measure that places corporate efficiency ahead of the public safety.”
I don’t believe him. I mean, perhaps Lane honestly believes that one can always put safety ahead of efficiency, but if so, it’s because he hasn’t thought about it very deeply.
There’s a very simple efficiency versus safety measure that could be implemented now that would save more than 35,000 lives and hundreds of thousands of injuries a year in the United States, and I would be stunned if Lane supports it: a nationwide speed limit for automobiles of 10 mph.
Automobile manufacturers design cars that can go faster than 10 mph even though they know, as a matter of statistical certainty, that thousands of people will die every year because they were traveling faster than 10 mph. For the most part, the liability system doesn’t hold these manufacturers liable for these tens of thousands of deaths and hundreds of thousands of injuries, even though it’s certain that the motivation for designing cars to go faster than 10 mph is profit (after all, very few would buy an expensive car that couldn’t go faster than 10 mph). It’s simply not the case that safety always trumps efficiency, nor should it be.
Once one concedes that cost-benefit analysis appropriately permits automobiles to be sold even though they can go faster than 10 mph, why is it so terrible that reformers seek to avoid the imposition of punitive damages in the liability system for second-guessing of other legitimate cost-benefit tradeoffs?
Of course, many reform measures have nothing to do with the efficiency-safety tradeoff. For example, the Class Action Fairness Act has nothing to do with safety: it just ensured that plaintiffs couldn’t force defendants to play Russian Roulette with dozens of identical parallel nationwide class-action suits taking place in individual state courts. Expert-evidence reforms seek to improve the accuracy of the litigation process. Procedural reforms seek to reduce the expense of litigation.
Still other reform measures improve efficiency and safety. For example, research has shown that some types of medical malpractice reforms reduce infant mortality rates: any risk from increased carelessness by doctors is more than offset by the increased incentive for doctors to practice free from excessive liability risk. Rubin and Shepherd have argued that reforms have saved thousands of lives in the states that have implemented them. Reform would also improve safety in the case of product liability, where many life-saving medicines and vaccines have been driven from the market by the risk of liability.
In contrast, ATLA has shown that it cares not a whit about efficiency nor safety; its support or opposition to changes in the liability system is solely driven by the effect on attorney incomes.