Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer 🌞! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.

Thursday, September 29, 2016

Guest post: Where is tort (anti)reform in politics now?

Alex Nee, a student in my Torts I class, posted to the class website links to Ralph Nader in Harper's (April 2016) and Michael Shammas's reaction at The Huffington Post (May 2016), reflecting on the latter in the context of our study of American tort law.  Alex's opinions are of course his own.  I think his revival of these pieces and his comments speak to something of the voter's frustration in this election cycle, as linked to questions about dysfunction in tort law.

When our class watched the special on New Zealand's lack of fault-based tort law [excerpt from Adrenalin Nation], I had mixed feelings. On the one hand, it would be nice to have a more efficient system in place to ensure damages were looked after in a timely manner and without the need for costly trials. On the other hand, lawsuits and trials serve as a deterrent to negligence and malpractice. So how can America balance the two?

Tort reform is something that is always being tossed around in political and legal circles. What is needed to accomplish efficiency, advocacy, and deterrence is something that can be debated. What Shammas, the author of The Huffington Post article, suggested, however, is that there is no debate that the tort system in America is broken.

Shammas suggested that the demand for reform comes from a number of factors including lobbyists, political polarization, the lack of a functioning jury system, and a number of "deforms" ranging all the way back to the 1960s. I am of the opinion, coming from a political science major, that a lot of these problems stem from a broken political system. Few people will debate that something is wrong with American politics; just look at whom we nominated for President.

The constant polarization of the parties and the greed for power and re-election (over the need for advocacy of constituents) forces politicians to act unreasonably. Rather than advocate, they want money and power. Jury trials take too long and are not viewed favorably by Big Money. If I ran a company that could be sued for negligence, I would want the "system" rigged (or at least very lenient) against plaintiffs so I would not have to pay damages easily. To that end I would donate and support candidates who oppose trials, juries, and reforms that might favor them. Like Nader, Shammas concluded that this position is not in the best interest of the American people.

Shammas cited Ralph Nader's article in Harper's about the lack of a functioning jury system in American tort law.  Juries were designed to democratize courts. Rather than a few elites deciding the fates of the laymen, the laymen themselves would decide the facts. The verdict would be skewed toward Big Money and elites if the jury were not present. This is why our Founders framed the jury right in the Seventh Amendment.

Shammas ended on a note that common law is lagging even farther behind than it should. In today's day and age, technology and information is changing on a daily basis. New tech comes out faster and faster. Last year's model is obsolete, time to upgrade. The common law cannot keep up with our fast-paced society looking for modern answers to law. This is another weakness perpetuated by the broken political system.

The Legislature is supposed to step in and assist where common law lags behind. But the inefficiency of Congress and the constant bickering of States results in a sub-par system of balancing common law. It seems that a majority of politicians would rather talk about how amazing they are and the sins of the other party than talk about how we can fix broken systems or update the laws to reflect society's standards for right and wrong.

Alex Nee has a B.A. in political science from Gordon College in Wenham, Massachusetts, and is a J.D. candidate at UMass Law School. He has worked most recently as a service associate for Mid-Cape Home Centers, a communications officer for the American Red Cross, a legal clerk for Cape Cod Media Group, and a parking enforcement officer for the Town of Barnstable, Massachusetts.

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