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Ferguson's View: Tort Reform

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  • TORT LAW REFORM-Jurisprudential theories are generally categorized according to the element of their subjects they take to be essential. A legal theory that stresses the logical consistency of judicial opinions is called formalist; a theory that emphasizes their social consequences is called utilitarian; a theory wthat regards them as reflections of the circumstances in which they were written is called historicist. The problem with all such theories is that they single out one aspect of the law as the essential aspect. The fact is, for better or worse, that the law has no essential aspect and is largely based upon judicial behavior. A rule may be written down, it may express the will of the people or sovereign, it may be justified by logic or approved by custom; but if courts will not enforce it, it is not the law, and lawyers who bet their cases on it will lose. Similarly, laws, including tort litigation, may be so miscontrued by courts in their enforcement that judgments are rendered which run completely contrary to the letter and spirit of the law. The problem in regard to tort liability is what precisely the basis for such liability should be. Assuming we want to make persons who act recklessly or carelessly pay the cost of cleaning of their tortious messes, how do we determine what sort of behavior counts as reckless or careless? How do we distinguish a tort from an accident, or from the permissible by-product of a socially desirable act. In the words of Oliver Wendell Homes, "Experience is the test by which it is decided the degree of danger attending given conduct under certain know circumstances is sufficient to throw the risk upon the party pursuing it." But the current controversy involving the issue of tort reform is not so much concerned with questions of liability as it is with settlements which appear disproportionate to the injuries allegedly inflicted upon the plaintiffs in such cases (awarding millions of dollars to someone who burned themselves drinking a hot cup of coffe from McDonald's or the case of the judge who is seeking damges in the millions because a dry cleaning business lost a pair of his pants). The reasonable course in regard to the reform of tort law is to limit the settlements to amounts commensurate with the damage inflicted upon the plaintiff. Nevertheless, as Holmes also pointed out, the "law is nothing more or less than what judges do." Greater care should be taken to appoint and elect judges who will follow common sense guidelines in this regard when handing down judgments in tort cases.

    (Bennie Lee "Ben" Ferguson is a write-in, independent U.S. presidential candidate registered with the Ferderal Election Commission. E-mail: Web page:
      June 23, 2007 12:49 AM BST
  • Do you think if I take the judge a chocolate-raspberry torte he will let me off of Jury Duty? After all it's judges who interpret the law.

    Bennie, I'm afraid that you lost me in the legal jargon. Just didn't understand enough of that to make sense of it. How about a dumbed-down version for us jurisprudence-challenged individuals. The average American is NOT going to understand that legalese without "pictures".
    "A live lived in fear is a life half-lived." - Native American proverb. "Inside every man is a woman who was drowned in testosterone before birth". - Wendy Jeanette Larsen "It is better to be hated for what you are than loved for what you're not." - Andre Gide (French writer)
      June 23, 2007 8:00 AM BST
  • May I quote from one of our well known writers?

    'If the law supposes that', said Mr. Bumble, 'the law is an ass...'"

    May I add a little to that?

    "and judges a by-product of said ass..."

    Sue. X Psychiatrists are like the eunuch in the harem. They know what transvestism is, they can describe it, they can demonstrate it, but they cant actually explain it!
      June 23, 2007 4:22 PM BST