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This chapter reviews the ways in which a psychological perspective informs an understanding of how plaintiffs, defendants, lawyers, judges, and jurors make decisions. It then explores how a psychological analysis of the tort system can contribute to the ongoing debate about tort reform, with psychology offering insight into why notions of frivolous lawsuits and litigiousness have become a common part of the public’s torts nomenclature and how tort reform implicates widely cherished values such as the value of personal responsibility. Finally, the chapter raises a number of questions and topics that deserve further systematic study, including causal reasoning within the adversary system; the impact of psychological heuristics; the interaction of liability, compensatory damages, and punitive damages judgments; settlement processes in mass tort;, and the objectives of tort law.

This chapter addresses the states’ responses to the three medical malpractice crises that have occurred since 1970. It begins by clarifying the distinction between first-generation and second-generation tort reforms. Using this distinction, the extent to which legislators are informed by research and the politics surrounding adoption of tort reforms is explored. Next, it discusses how state judiciaries affect the application and impact of tort reforms. The remainder of the chapter discusses empirical evaluations of the effects of reforms and the difficulties in evaluating them, as well as their unintended consequences. After three decades of experience with state tort reform and evaluations covering a period almost as long, the key finding is that only damage caps have consistently affected various outcomes of interest, including claim frequency and severity, medical malpractice premiums, and physician supply.

This chapter examines the costs and contributions of the current legal framework for seeking justice to remedy medical malpractice. Patients injured by medical treatment or misdiagnosis can sue for malpractice. To recover damages, plaintiffs must prove “negligence”—that is, that their providers failed to exercise due care. The plaintiff must establish four elements of a tort lawsuit: duty, breach, proximate cause, and damages. The chapter first considers problems with the current malpractice system, including injustices to individuals who are unable to mount effective litigation when they are victims of malpractice. It then discusses what justice requires for handling cases of negligent injury and evaluates the performance of the legal system against that standard, and whether popular tort reforms are moving the legal system closer to or further from the standard.

Georgia Power, through lobbying, was able to convince the members of the Georgia legislature to allow customers to fund the construction of a nuclear reactor. During the 2008 government bailout, the government chose to allocate the rescue funds to the country's leading corporations instead of to individuals. This chapter demonstrates how corporations implement their view of morality. It provides examples of circumstances where regulations fail to comply with what the public needs because of power issues, and also introduces the concept of proximate cause as a means of tort “reform” to remove liability in negligence cases.

This book starts with the story of Susan Halvorsen and her husband Jim Gjebic, who died of a heart attack at the age of thirty-four. Like thousands of heart disease victims and their spouses throughout the country, Halvorsen sought legal counsel in the hope of receiving compensation for her loss and some degree of retribution from the large multinational corporation that, she was convinced, had caused Jim's untimely death. Upon contacting a Michigan lawyer, however, Susan learned to her great dismay that her lawsuit was a nonstarter, not because of something she or Jim had done but because of a law that the Michigan legislature had enacted in 1995 as part of a “tort reform” package aimed at protecting a large Detroit drug company from alleged “lawsuit abuse.” .

The conclusion explores some implications of the analysis and model of rights developed in the book for the theory and practice of private law. It suggest that tort seems to be the area of private law in which the new rights and duties would primarily manifest themselves, and presents a preliminary analysis of the way in which the model of rights developed would bear on tort theory and tort law.

Chapter 3 maps the current judicial selection landscape by describing a series of developments decades in the making that has altered the political environment of judicial elections in fundamental ways. The chapter begins with a table showing the breakdown across all fifty U.S. states regarding which of the five methods of selecting judges are used by each state in selecting its high court judges. An additional table demonstrates how each state treats the reselection of a judge after the judge’s initial appointment or election. The chapter then turns to the contributing causes of the new politics of judicial elections, which include the weakening of the Democratic Party in the southern states, the rise of discretionary Supreme Court Review and the decline of mundane cases, the migration of civil rights and civil liberties campaigns to state courts, the role judges play as enemy combatants in the War on Crime, and the battle for tort reform going on in the state courts, which have resulted in the changing landscape of the American judiciary. The chapter concludes with a discussion of the consequences of these changes.

Some tort reforms in effect transfer money from injury victims and their attorneys to health care providers. Flat caps on damages, the overwhelming favorite of the lobbies for provider organizations, particularly since 2000, fall in this category. Placing a cap on damages has no potential for improving patient safety. In addition, this policy disproportionately makes plaintiffs with severe injuries worse off. A stronger argument for limits on awards is that there is considerable variation in awards, limiting, among other things, the injury deterrent signal. As an alternative to flat caps, this chapter examines proposals to schedule damages fully for nonmonetary loss rather than just place limits on the high payments. Another alternative to fixed lump-sum payments, periodic payments, or even a complement to scheduled damages, is service benefit insurance contracts to cover medical, custodial, educational, and rehabilitative services. The chapter also describes a proposal for service benefit contracts.

Liability laws designed to compensate for harms that are caused by defective or dangerous products or that are the result of professional negligence may also affect innovation incentives. Advances in artificial intelligence and in robotics have generated lively debates over whether existing liability systems constrain technological progress and whether they present an opportunity to redesign liability rules. This chapter reviews empirical studies on the links between liability and innovation using a large sample of data. It aims to provide some insights into the potential impacts that liability laws and likely changes in the system may have on the rate and direction of innovation in robots and artificial intelligence, and to identify areas and questions for future research.

Many criticisms of juries concentrate on civil juries, alleging that they award plaintiffs excessive and unpredictable punitive damages. Although very large punitive damage awards exist, juries rarely award punitive damages. And as with compensatory damages, it is hard to say what makes a punitive damage award “excessive” or “unpredictable.” This chapter reviews research on juries’ punitive damage awards as a function of a number of different variables (e.g., case type, awards over time, and substantive and procedural trial variables). It then discusses various reforms designed to lower or systematize punitive damages. The chapter concludes that although punishment by civil juries is not perfect, for the most part, it is neither excessive nor unpredictable. And as with compensatory damages reform, reforms targeting punitive awards can be ineffective or counterproductive.

Many criticisms of juries concentrate on civil juries, alleging that they award plaintiffs excessive and unpredictable compensation. These allegations are especially common in certain areas of tort law, such as products liability and medical malpractice. After discussing exactly what constitutes an “excessive” or “unpredictable” award, this chapter reviews research on jury compensation as a function of a number of different variables (e.g., case type, kind of compensation, awards over time, and substantive and procedural trial variables). It then discusses various reforms designed to lower or systematize compensatory awards. The chapter concludes that although jury compensation is not perfect, for the most part, it is neither excessive nor unpredictable. Moreover, reforms targeting compensatory awards are often ineffective and even counterproductive.

Horrific medical accidents widely circulated in the media: Betsy Lehman, Boston Globe health reporter died from a chemotherapy overdose; in Florida, Willie King had the wrong leg amputated. These scandalous stories killed organized medicine’s efforts at tort reform because no one could reasonably support it after such injuries. In the aftermath, the first Annenberg Conference on error in medicine was proposed to help medicine “get on the right side of the issue.” Lucian Leape and James Reason provided keynote addresses, symbolizing a partnership between medicine and cognitive psychology. The Ben Kolb case presented at Annenberg spurred organized medicine to begin serious safety efforts, and the National Patient Safety Foundation was started by the American Medical Association. A second, even larger Annenberg Conference was held with substantial input from nonclinical safety scientists.

This chapter considers contemporary developments in private law. We live in a world that increasingly includes statutory encroachments on common law principles, and some of these revisions alter the way legal claims are pursued. A focus on rights of redress offers different perspectives on several of these developments, sometimes offering grounds for critique and sometimes providing support. This chapter will assess the implications of damage caps, arbitration, litigation finance, corporate claims, and class actions. As will be developed, these contemporary legal features suggest that redress exists along several continuums: it can be more or less private; it can depend on a neutral third-party decision-maker or it can be unilateral; it can be more or less subject to a right holder’s control; and it can be more or less complete. Whichever form redress takes, however, it will also implicate questions of justice. In order to fully appreciate why redress matters, each of these features needs to be assessed.

The structure of discrimination law, with its many pro-employer inferences and rules, pushes cases toward dismissal. In this chapter, we explore what we call the “fakers and floodgates” argument—the idea that judges must curtail the reach of discrimination law because the federal court system is flooded with unmeritorious employment discrimination suits. It is important that concerns about fakers and floodgates be taken seriously. If fake claims were flooding the federal docket, this would be a significant problem. However, the fakers and floodgates argument is unproven and therefore should not support change to discrimination law. No data shows that the courts are flooded with false claims. If false claims exist, the courts already have an effective way to ameliorate them: they can punish litigants who make false claims. Nonetheless, the “fakers and floodgates” argument plays a powerful role in modern discrimination law.