New York Personal Injury Law Blog » Seventh Amendment, Tea Party, tort reform


May 3rd, 2010

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a  smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on.

Why are these questions important? Because the Tea Party movement is not yet corrupted by campaign money. Leaving aside the charges of racism leveled against some in the movement, and which certainly exists in some segments, I suspect that others actually care about political theory. It is for these people that I ask these questions:.

1. Do you believe in limited government? If so, does adding protections and immunities for negligent people/companies comprise bigger or smaller government?

2. Do you believe in a free market? What are the free market benefits of protecting companies that make dangerous products? Should companies that create safe products be rewarded and should companies that make unsafe products go under?

3. Do you believe in personal responsibility? If so, do you want to nevertheless limit the responsibility of negligent parties and shift the burden to others?

4. Who should pay the costs of an injury? The negligent party or the taxpayers? Will it be Medicare or Medicaid that will pay with your tax dollars? Or will it be a state fund, like the one proposed in Oklahoma? If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to pay to protect the tortfeasors?

5. If you want to limit the civil justice system, does that mean you want a corresponding increase in the criminal justice system and regulation to make up for it? Or should negligent/reckless parties just get a free ride? (See: Punitive Damages: Why America is Different Than Europe)

6. Should we give the government more power by disbanding the jury system? One of the results of the Revolution against King George was establishing the right to trial by jury. It is mentioned in the Declaration of Independence as well as the Sixth and Seventh Amendments of the Bill of Rights and acts as a check on government power. (See: Should Obama Sit Jury Duty?) Do you want the government to have more power?

7. Do you want to toss out political theory in favor of the pragmatics of protecting doctors and hospitals from an avalanche of medical malpractice cases? If so, should you consider that medical malpractice payments have actually hit a new low?

8. Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

The current state of the Republican Party, it seems, grabbed the tort “reform” issue many years ago despite the fact that it makes no sense at all from a conservative perspective. I’ve always assumed that this was because the party had sacrificed ideology for money.

That concept of selling the soul isn’t just true of politicians, of course. Conservative broadcaster John Stossel, for example, once confessed that he  switched from being a consumer advocate to bashing government and trial lawyers:

“I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”

And there are plenty of tort “reformers” who suddenly understood the significance of what they were doing only after they were injured by the negligence of others.

But the Tea Party is without any meaningful donations, and has the luxury of staying true to conservative beliefs. Will they?


See also:

  • Why I Am A Small-l Libertarian, Not a Large-L Libertarian (Ken @ Popehat)

    I keep saying here that I’m a small-l libertarian. What does that mean? It means that I’m not a member of the Libertarian Party, and don’t have any plans to become one. Why? In part it’s because I think party identification encourages sloppy thinking and orthodoxy — it leads us to adopt positions not because we’ve concluded those positions have merit, but because the tribe with which we identify has adopted them…

  • National Survey of Tea Party Supporters, Done by the New York Times and CBS News (Volokh @ Volokh)

    …Some unsurprising data, but some noteworthy; among other things, tea party supporters are more conservative than the public on social issues, but not vastly so…

May 11, 2011 addendum:

Tea Party Leader Slams “Myth of Frivolous Lawsuits” (Cochran @ 7th Amendment Advocate)


12 thoughts on “Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

  1. Well done, Eric. It really brings out the basic inconsistency between the real conservatives and the part of the Republican party that is just a wing of big business.

  2. Nice post, Eric. I think your 8th question is especially interesting. “Do you believe in states rights?” since states rights and limited government is supposedly the centerpiece of conservatism. But it seems that so often people on both sides of the political aisle pull out the states rights defense only when it supports their particular view. Many on the right are certainly guilty of this. They want states rights unless in theory, but not when it comes to gay marriage.

  3. From what I’ve seen, the Tea Party movement seems to be focused on the much more important issue (as I view it) of the deficit and expanding government.

    Most “pure” libertarians, who aren’t at all the same thing as the Tea Party movement, are pretty gung ho on the courts as an alternative to legislation and regulation, preferrring to enforce rights through suits for breach of contract and tort (for which the doctrine of “nuisance” is well suited).

    But as you hint, pure libertarians are a vanishingly small breed.

  4. I believe that the main tea party issues are anger over taxes, high entitlements, and the bailout. I don’t see how civil tort litigation impacts those issues, so this may not be a significant tea party issue. That doesn’t mean individual tea party members may not be for tort reform, or that the republican party or others may not be trying to co-opt the tea party for that use.

  5. All very good questions and very unlikely to be answered. The reality is that the answers are obvious and the expose the hypocrisy of action vs words in most of the instances. Although, it would be nice for our clients if we could de-politicize the issues.

  6. Tort litigation has a direct effect on taxes. If a federal, state or local employee is convicted of liable negligence ect. It is the tax payers who foot the bill.

    • If a federal, state or local employee is convicted of liable negligence ect. It is the tax payers who foot the bill.

      That is true. The taxpayers, after all, hired the person that committed the negligent act. And that is one reason it’s important to hire responsible people for public sector jobs.

      Do you think the victim should foot the bill instead?

  7. Pingback: Special Monday Apocalypse and Healthcare Edition « Out Of My Mind

  8. Pingback: Tea Party and Tort Reform – New York Personal Injury Law Blog

  9. Pingback: The Year in Review (2010) – New York Personal Injury Law Blog

  10. The statement that tort litigation has a direct effect on taxes may be true, but it also misses the point. The focus should start where the tort started. If more was done to reduce negligence then there would be less injuries and less lawsuits. Reducing the responsibility of those who injure others doesn’t do anything but make it less likely that they will fix their mistakes. If municipalities know that they will spend more on preventing injuries than litigating them, they will choose to litigate rather than prevent.

  11. Pingback: New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature) – New York Personal Injury Law Blog