Yesterday, I had the honor and pleasure of debating Professor Jonathan Turley on litigation reform issues at a Knight Center seminar on “Law and the Courts” in front of a few dozen journalists. Some of the topics we and the audience questioners touched upon all too briefly there merit follow-up in a forum where citations are easier.
Overlawyered posted on the drunk driving car window case we discussed.
In “The Myth of the Ford Pinto Case”, 43 Rutgers L. Rev. 1013 (1991), Gary Schwartz demonstrates that the Pinto’s safety record was comparable to other cars of the era, and that the Mother Jones prediction of hundreds of deaths was wildly off. This site’s editor’s articles, “It Didn’t Start With Dateline NBC” and “Exposing the ‘Experts’ Behind the Sexy Exposés: How Networks Get Duped by Dubious Advocates” are both good reading for more on the Pinto legend and on the topic of lawyers’ attempts to manipulate the media.
There appears to be a tradition that no litigation reform debate can be held without reference to the McDonald’s coffee case. The fact that Professor Turley defends this verdict (and presumably teaches the same to his Torts students) shows that this ten-year-old case is still relevant. The much-better reasoned McMahon v. Bunn-O-Matic threw out a lawsuit with an identical theory of liability for third-degree coffee burns in one’s lap. Professor Turley attacked the decision on the ad hominem grounds that Judge Easterbrook is conservative, but if that were so, one could presumably point to the part of the opinion infected by political bias, and I have yet to see anyone do so.
Professor Turley claims the urban legend of the lawsuit involving the guy who used a lawn mower as a hedge-clipper has infected the tort debate, but a Google search shows that the vast majority of references on the web to this story come from reprints of Turley’s article on the subject. I’d like to see a source for Professor Turley’s claim that this anecdote is taught in law schools; when I was in law school in 1992, the tale wasn’t treated as anything other than an urban legend, as one Chicago 1L shared with the pre-blog Internet urban folklore group. One columnist who didn’t fact-check before passing on e-mail glurge doth not a trend make.
There were a lot of questions about asbestos litigation; Jim Copland’s short overview on the topic is a good starting place, with many links to more detailed analyses.
I disagree with Professor Turley’s claim that medical malpractice rates would go down if there was “experience rating”, mostly because it appears that the malpractice liability system in place today is sufficiently random that past claims are not a good predictor of future claims. (Raymond Lehmann, “Medical-Liability Debate Puts Rate-Setting Complexities Under Microscope”, BestWire, Feb. 22 ($)). I’ve elsewhere commented sardonically on the claims that insurance industry incompetence is the reason behind the malpractice crisis.