The recent editorial by George Will should serve as a shot across the bow for those of us who have been wondering how the Republican Party will try to sell itself in the future, and it makes some valid points. Anyone who has followed the news sometime in the past few decades knows that liability judgments in this country can get out of control.
What George Will doesn't need to say is that in the past few years, with substantial political control, the Republicans have appeared to put themselves into the lead in trying to do something about it. Left to their own devices, the Republicans will say that liability is driving health care costs out of control and making American business uncompetitive, and that only their party has the common sense and anti-government rebelliousness to bring it under control. For this reason it is crucial that Democrats get out ahead of this issue.
Let's start by pointing out that the prevalent Republican idea of capping damages at a fixed dollar amount is really aimed at helping large organizations and wealthy people. It doesn't improve the way in which the damages and the theory of liability is determined. If someone slips on your steps or takes exception to something you said in a town meeting, a $500,000 cap on noneconomic damages isn't going to help you.
Besides which, some of the worst routine injustices involve economic damages - especially, wild theories of lost pay. A person is fired by a school and two years later the taxpayers are told they need to pay two years' back salary for work never done. Or a group of lunatics takes down the World Trade Center and while the theory of liability is that "you can't put a price on life", it immediately proceeds to do so - provided that the price on life is different for different people according to guesswork about what they might have made in salary. I think that in general it can't be justice to assess full compensatory payment to people for work not done. Instead we should recognize the reality of noneconomic damages - real pain and suffering and death - and we should not be shy to set statuatory values on them that are the same for all people, rich and poor. The rich can afford extra life insurance. We should not compensate for "lost wages" except for the reasonably expected length of the temporary disruption in a person's life from a wrongful dismissal, or the lingering marginal effect of a blacklist.
We also should focus on abolishing theories that demand people to treat one another like fools, or to be responsible for preventing one another from acting stupidly. We should demand that victims shoulder the full risk of interacting with the natural environment when they are outside, and that they can't hold building and business owners to blame who have complied with all the vast number of building codes and ordinances that might be relevant to a risky situation. Even if it is a good idea to demand that employers insure workers against injuries suffered on the job without the employer violating any laws or standards, it surely would be far more efficient to mandate this through good medical coverage than by arguing each case in court.
I may well have committed errors of judment in the above discussion - even in theory, it will by no means easy to truly fix America's liability system rather than just using caps and date limits to keep it corraled. It will probably require many separate, detailed pieces of legislation that could easily be corrupted by special interests. But if the Democrats can do it then they will make a saner, more efficient America, and as reward they will be ready to win one of the ideological battlegrounds of the next election.
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