Liability
Huber, Peter
LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES Peter Huber/Basic Books/$19.95 Michael Fumento T he United States has by far the 1 highest per capita number of lawyers of any nation in the...
...States will continue to try to solve the liability problem in foolish ways, as with California's Proposition 103, which reduces auto insurance premiums but does nothing to solve the underlying problem of why those rates are so high in a competitive market...
...that is, the ones who aren't parking cars, waiting tables, or trying for the third time to pass the California bar...
...Another was that judges expanded the scope of their jurisdiction and that of the jurors to a point where they were dispensing "justice" with little regard to economic realities or the law...
...dollars, Liberty Fund, Inc...
...All orders must be prepaid in U.S...
...Because Warren was deeply engaged in the political and moral issues of her day, her writing represents a treasure trove...
...But, despite some incredibly high awards, on the whole the little man is not much more protected than he was before...
...Dept...
...Huber gives one especially chilling instance of deterrence run amok: "According to the [then] director of the National Cancer Institute, many physicians refuse to prescribe potentially curative doses of cancer chemotherapy for fear of litigation over side effects, and thousands of patients may die needlessly each year as a result...
...says the thoughtful lawyer, eyeing his client...
...THE AMERICAN SPECTATOR MARCH 1989 W hat is needed, ultimately, is the complete uncoupling of deterrence from compensation...
...Originally, the product needed to be defective in and of itself, but soon it was enough to establish that another manufacturer had a better design of the product, or merely that a better design was feasible...
...By far the greatest change in liability, however, has occurred in product safety...
...Among the examples he cites of this rebirth is a first-party insurance policy offered through high schools to their athletes...
...This wall, too, has been rapidly crumbling, with teachers now collecting damages "for the mental trauma of being exposed to prayers unconstitutionally included in two holiday assemblies...
...Until then, we can keep ourselves occupied watching "People's Court," telling lawyer jokes, and chuckling over lawyer cartoons...
...Indeed, says Huber, they may be opposing: Effective deterrence requires a clear point of responsibility, but generous compensation depends on a broad tax base to sweep in at least one or two deep pockets...
...Call it the tort liability tax...
...compensation requires looking as far forward or backward in time as may be necessary to find funds...
...Effective compensation depends on simply sending the bill somewhere or other, here or there, as may be convenient for securing funds in the particular case...
...But maybe we can sue Jacques Cousteau...
...At one time "strict liability" (meaning that causation must still be proved but negligence need not) was applied only to keepers of wild animals and persons who engaged in inherently dangerous activities such as dynamiting...
...But each time they left a loser in their path, and ultimately, the biggest loser would be the consumer...
...Index for both volumes...
...Unfortunately, while there's no doubt that deterrence is taking place, the tort liability method is so utterly haphazard that what it deters has no relation to what the potential cause of harm is...
...A jellyfish, eh...
...According to this plan, when a serious accident occurs the injured athlete is immediately offered compensation for all medical expenses and a modest but certain disability benefit...
...They always did...
...What we need is a system that helps prevent those wrongs without forcing a spin of the wheel...
...Hardcover $30.00 the set 0-86597-066-1 Paperback $15.00 the set 0-86597-069-6 Also Available: GEORGE WASHINGTON: A COLLECTION Compiled and edited by W. B. Allen rrhe bicentennial of George Washington's presidency begins .1 April 1989...
...But for now, legislatures can begin putting back power into contract, and judges can recognize it...
...A few examples: • A contestant in a refrigerator-carrying footrace recovered for injury to his back...
...Today, of course, that sort of tort law provides afternoon TV drama on "People's Court...
...Please allow approximately 4 weeks for delivery...
...Huber is realistic...
...Because of this tax, writes Huber, you cannot use a sled in Denver city parks or a diving board in New York City schools...
...The system appears to work remarkably well, and has now been adopted by two-thirds of all school districts...
...And the reformers won again...
...Intangible injuries, such as unintentional infliction of severe emotional distress, had been traditionally limited for the obvious reason that, if it were carried out to the extreme, practically anyone could be made liable to practically anyone else for practically anything...
...Name Address City State/Zip Mail to: Liberty Fluid, Inc...
...An early target was the insurance companies, which found courts rewriting their policies if it turned out the policyholder hadn't bought enough of the right type of insurance...
...Foreward, bibliography, editor's note, list of abbreviations...
...Deterrence depends on solid proof of cause and effect...
...Volume II — 380 + xv pages...
...Total Please allow approximately 4 weeks for delivery...
...For example, companies received a temporary reprieve when they began including express disclaimers of liability with their products or services...
...Forrest McDonald, University of Alabama 715 + xxviii pages...
...His solutions are neither comprehensive nor utopian...
...The occupant of a telephone booth demolished by a drunk driver collected from the booth manufacturer...
...It's levied on virtually everything we buy, sell, and use, accounting for 30 percent of the price of a stepladder or small airplane and over 95 percent of the price of childhood vaccines...
...So don't be surprised to see Huber's ideas eventually being implemented—ever so slowly, to be sure, but implemented nonetheless...
...It provides a privileged experience, that of reliving with the greatest of Americans his public career, through a judicious and well-annotated selection of his own writings...
...Joyce Appleby, University of California ercy Otis Warren was the most formidable woman intellectual in early America, and a proponent of the American Revolution...
...the tesult was that private insurance would inevitably decline...
...Effective deterrence means "the buck must stop somewhere certain, definite and predictable," adds Huber...
...42 is to compensate for injury and deter intentional wrongdoing or negligence...
...Then there are the grossly destructive or expensive awards: • The city of South Tucson, Arizona, had to pay $3 million to a police officer who was shot by a fellow officer—an award that amounted to $400 for every resident of the city...
...So there began a lengthy siege of the paper battlements, an arms race of verbal escalation and counterescalation between rival legal battalions...
...Now manufactured products from dynamite to dominoes fall under the strict-liability rule...
...Courts "discarded virtually every legal rule that had previously allowed insurers to define risk pools with workable precision," writes Huber...
...It also became immaterial that a consumer had bought an inherently weaker design in order to save money...
...What you probably don't know is what all those lawyers do...
...You cannot buy an American Motors "CJ" Jeep...
...Most wrongs, for whatever reason, never get to court...
...The trial judge cut the punitives to $3.5 million...
...TWo men who stuffed a hot-air balloon into a commercial laundry dryer, which then exploded, recovered damages from the manufacturer of the machine...
...Printed throughout in two colors with fifteen illustrations...
...The courts knew injustice when they saw it and tried to redress the situation...
...Please send me a copy of your NEW 1989 catalogue...
...But, writes Huber (with a characteristic indulgence of metaphor): The [reformers] welcomed the arrival of express disclaimers much as a pack of chimpanzees welcomes a python, with much howling and chest pounding and waving of arms and throwing of rocks...
...To order, or for a copy of our NEW 1989 catalogue, write: Please send me: Quantity Ordered Title Edition Price Amount History of the Rise . . of the American Revolution Paperback Hardcover George Washington: A Collection Hardcover Paperback $30.00 15.00 $26.00 9.50 Subtotal Indiana residents add 5% sales tax We pay book rate postage...
...The tax has curtailed Little League and fireworks displays, evening concerts, sail-board races, and the use of public beaches and ice-skating rinks...
...Massengill was apologetic, but little more: if the users wanted a guarantee of safety, the company conveniently reasoned, they should have demanded one before buying the product...
...Private contract can be resurrected in new forms that channel incentives toward more care by providers and better insurance against accidents...
...In its search for witches," says Huber, "the modern tort system has undoubtedly found a few and reduced them to ashes...
...The objective for the reactionaries was to write disclaimers of liability that would stick...
...Thus a jury fined Honda $5 million for its "reckless" act of using lighter materials than those used by some other manufacturers that year...
...But you already know that, more or less...
...The rebirth of contract, Huber writes, "can reconcile the generous and protective impulses of an affluent modern society with the venerable legal principles of cooperation and consent...
...77 43...
...The basic answer, says Huber, is not to abandon contracts, as the [reformers] did so briskly and casually, but to modernize it...
...But Huber's solutions are nevertheless practical...
...7440 North Shadeland Avenue Indianapolis, IN 46250 ^ Enclosed is my check or money order made payable to Liberty Fund, Inc...
...But, as Joel Hyatt would say (albeit for a different purpose), "somewhere in all these dusty lawbooks a great idea got lost...
...Z101 Indianapolis, IN 46250 from the beginning was meant to compensate, and however well it may or may not do so, the aims of compensation and deterrence are simply too disparate...
...Indeed, utopianism, he says, is the underlying fatal flaw that runs like a crack through the middle of liability law reform...
...But as post-World War II America grew increasingly affluent and life expectancies lengthened, individual litigants began contesting such one-sided contracts in the courts...
...7440 North Shadeland Avenue...
...That's a tough one...
...This work (in the first new edition since 1805) is an exciting narrative of the Revolution, from the Stamp Act of 1765 through ratification of the Constitution in 1787-88...
...All orders from outside the United States must be prepaid in U.S...
...Great reading but also more than that...
...The ostensible purpose of modern tort law, however, Michael Fumentc one of America's superfluous lawyers, is a writer in Alexandria, Virginia...
...For example, in 1937, the Massengill Company began shipping an early sulfa drug in a raspberry extract and alcohol base that had never been tested in animals for safety...
...Soldier of Fortune magazine will probably shut down if it loses its appeal over a suit concerning a disguised ad for a contract killer placed in its classified section...
...The main reaction seemed to be outrage that anyone would dare to block the march of progress quite so brazenly and unapologetically...
...Volume I - 382 + xliv pages...
...LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES Peter Huber/Basic Books/$19.95 Michael Fumento T he United States has by far the 1 highest per capita number of lawyers of any nation in the world...
...The objective for the reformers was to get over, under, or around disclaimers one way or another...
...Why couldn't he have placed the ad in the Nation...
...I n days of yore (which is to say as 1 recently as twenty years ago), Huber tells us, much of what now comes under tort law came under the law of contracts...
...broad compensation depends on ignoring the same as much as possible...
...I n theory, this shifting of money 1 deters unsafe activities...
...For each plaintiff who won $1 million in the tort liability lottery, there were 100,000 consumers surrendering $10...
...A jury awarded the survivor of a Ford Pinto gas-tank explosion $2.5 million in compensation for injuries and $125 million in punitive damages, even though no malevolent motive had been shown, as was traditionally necessary...
...The original purpose of tort law was to keep the king's peace: disputes were to be resolved in a courtroom proceeding instead of in an open-air free-for-all...
...Huber quotes a victorious plaintiff as saying that his lawsuit was like playing "Wheel of Fortune," and points out that this is exactly what tort litigation is—a game of chance...
...Peter Huber thinks that a lot of them are fighting tort lawsuits of very dubious value or with questionable rewards, and he has chosen to write a book about them...
...But what to do...
...dollars...
...In this handsome book, the only one-volume compilation of his vast writings in print, Washington speaks for himself on behalf of liberty and the American Republic...
...Tort law cannot serve two masters...
...And as is the case with most of the taxes paid to the federal government, we don't get our money's worth here either...
...The time-tested legal tools that promote informed private or public choice about risk and safety, and the use of direct insurance against the hazards that remain, promise far better than the liability spiral we are riding today...
...But too many wonder drugs have also been gathered into the flames...
...in return the student agrees not to sue the school...
...Unfortunately, the contracts were sometimes disastrously one-sided and amounted to little more than caveat emptor...
...One result was that these companies could no longer be assured of getting away, perhaps literally, with murder...
...Occasionally, the potential defendants fought back, but success would prove short-lived...
...And when they do, they still often go unredressed...
...Liability law THE AMERICAN SPECTATOR MARCH 1989 NEW FROM LibertyClassics HISTORY OF THE RISE, PROGRESS, AND TERMINATION OF THE AMERICAN REVOLUTION INTERSPERSED WITH BIOGRAPHICAL, POLITICAL AND MORAL OBSERVATIONS By Mercy Otis Warren Edited and annotated by Lester H. Cohen "A modern edition of Warren's History edited by a leading authority on the historical literature of eighteenth-century America is indeed a publishing event...
...One hundred users promptly died...
...We pay book rate postage on prepaid orders...
...Editor's note, acknowledgements, chronology, list of illustrations, index of recipients, subject index...
...Hardcover $26.00 0-86597-059-9 Paperback $ 9.50 0-86597-060-2 Prepayment is required on all orders not for resale...
...Deterrence requires swift, well-timed justice...
Vol. 22 • March 1989 • No. 3
