Texas: serious litigation reform, serious results

“How tort reform helped ignite the Texas boom”:

Over the last two decades, Texas engaged in a conversation as to the purpose and role of its civil courts. When that conversation began, the state’s courts had become virtual fiefdoms of trial lawyers. Texas recognized few limits on damages claims and imposed minimal accountability on plaintiffs. The state’s litigation environment was, unsurprisingly, toxic for business. The pushback came in the early 1980s. Lawmakers started to ask whether the Texas constitution’s commitment, spelled out in Article 1, Section 13, that “all courts shall be open, and every person for an injury done him . . . shall have remedy by due course of law” precludes putting reasonable limits on liability. The state legislature’s decision to strike a balance and roll back tort excesses marked a turning point in the state’s economic rise. Together with competitive tax and regulatory policies, tort reform sowed the field so that Texas’s pro-growth policies could take root.

Comprehensive backgrounder covers such topics as the putting up of justice for sale at the pre-reform version of the elected Texas Supreme Court (the anecdote from businessman Henry J.N. Taub is especially alarming), the Texaco-Pennzoil case and the generosity to judges of the late Joe Jamail, America’s richest lawyer; early statutory enactments, struck down by the state’s high court; the turning point that came when “the general electorate finally began taking an interest in judicial elections”; the Rio Grande Valley doctor’s revolt; comprehensive reforms beginning under then-Governor George W. Bush and continuing under his successors including Rick Perry; elements of loser-pays; and the general success of tort reform, both in economic climate generally and specifically in the encouraging climate for the state’s medical sector, which includes many nationally prominent institutions. [Kathleen Hunker, City Journal]


  • Make no mistake, the Texas courts are bought and paid for, as they always have been. There are only two relevant question.

    1. Which side is ponying up the money?
    2. Is the winning bidder’s point of view the better one for society?

    I don’t have the answer to the second question. I leave that up to experts like Mr. Olson.

    This is another example of how the Texas political system is Machiavellism at its finest.

    • If I were to claim that the Texas court today had a corruption problem as bad as in the 1980s, I might want to back that serious charge up with examples as compelling as those Kathleen Hunker gives about the earlier court. Otherwise people might think I was talking through my hat.

      • So. Trial lawyers paying for justice to line their pockets is bad. Businessmen paying for justice to keep their pockets lined is good.

        Machiavelli would be so proud. (That is not to say that Machievelli was wrong).

        I do not know if the corruption today is as bad as it was in the 1980s. Certainly, it does not appear so on its face.

  • An untouched corner of Texas injustice is the Federal District of East Texas, America’s most notorious venue of patent trolls. The State courts there can also be quite crazy: google “Mineola swingers case”.

  • In response to Allan and Walter’s exchange, I’d point out a key difference between then and now: Texas tort reform almost exclusively came from the legislature. The courts undoubtedly have made some common-law rulings unfavorable to the plaintiff’s bar since the 1980s, but the sea change in Texas tort law has originated with the political branches of government. So I don’t think that Allan’s claim that “the Texas courts are bought and paid for, as they always have been” holds up to scrutiny, at least not on the basis that he made it. There’s less common law and a lot more statutory law than there once was in the field of torts, and the courts are really constrained by the legislature to a significant extent. One could argue that the courts are being purchased indirectly by businessman by way of the legislature; but, that’s a much harder case to make, because it’s harder to credibly argue that Texas’s legislature is out of step with the people it represents.

  • Let’s not confuse correlation with causation, This explains the rise of the economy in Texas. http://www.rrc.state.tx.us/oil-gas/research-and-statistics/production-data/texas-monthly-oil-gas-production/

    But no one has ever suggested caps on damages don’t help insurance companies and business. The key is whether justice is being advanced by these laws.