Laws that prevent injured or otherwise negatively affected consumers from filing legitimate cases for getting compensation from companies whose products or services cause the adverse events are referred to as “tort reform.” The movement concerning tort reforms has been responsible for causing damage to children and families by weakening the civil justice system’s ability to protect consumers from damage being caused to them, whether with or without courts. Importantly, the prospect of civil liability deters manufacturers, service providers, and other possible wrongdoers from repeating negligent behaviors through an economic incentive to maintain the safety of their practices. Tort actions facilitate the disclosure of the most critical internal information about unsafe products and practices, enabling the airing of such disclosures through the media. The main problem with tort reforms lies in the fact that corporations have blocked regulatory laws and forced to change harmful actions because of lawsuits brought by consumers. Thus, it is in the high interest of companies to influence legislators and regulators with bribery actions to ensure that the safety laws do not become stronger and stricter.
The tort system has been developing reasonably recently, as, before the mid-1970s, organizations focusing on consumer rights gave little attention to it. Around that time, changes started occurring when the US began experiencing its first liability insurance crisis, with insurance rates for businesses and doctors becoming to increase for no apparent reason (Doroshow, 2016). Insurers named this a “litigation explosion” and started demanding increased rates from state regulators and convinced lawmakers that the only way to decrease litigation rates was limiting the rights of injured victims. While there was no actual “litigation explosion,” companies understood that blaming lawyers and litigation for the crisis that corporations themselves caused could reduce legitimate claims brought against businesses (Doroshow, 2016). Thus, companies have a longstanding history of manipulating tort law and restricting consumers’ access to justice.
The three ways in which corporations restrict access to justice through tort reforms include caps on damages, forced arbitration, and limits on contingency fees. Damage caps represent arbitrary limitations on the amount of damages that a harmed consumer can receive in compensation, irrespective of the evidence presented to support large amounts (Doroshow, 2016). Typically, cap proposals cover non-economic damages, which provide compensation to people for real but intangible injuries related to their quality of life. For example, damages can include harm to the reproductive system, permanent disability, trauma, blindness, loss of a limb, and other physical impairments.
By setting caps on damages that individuals can claim, the authority of juries and judges is usurped. Caps on non-economic damages are especially discriminatory to senior citizens, children, low-income individuals, as well any other vulnerable individuals. According to Finley (2004), women are more likely to be awarded for non-economic loss damage compared to men, with any cap set on such damages depriving women of a greater proportion and amount of a jury award than men. Thus, to a significant degree, non-economic loss damage caps amount to a form of discrimination against women, contributing to unequal access to fair compensation for this group.
The contingency fees system provides individuals with legitimate injury case access to an attorney regardless of their financial capabilities. Thus, an attorney is to take a case without charging money from their clients up front and is paid only in case of success (Doroshow, 2016). This leads to contingent-fee lawyers ‘screening’ their potential clients and cases to find the ones that have higher chances of success in court, thus agreeing to handle stronger ones. However, today, around half of US states have laws concerning contingency fees. While some states allow for fees’ judicial review, others cap them at levels that are considered fair and ethical.
Just as limitations on non-economic damages have a disproportionate impact on vulnerable groups, so do caps on attorney fees. Significant constraints on contingent fees would make legal assistance available only to those affected individuals who have the financial capacity to do so. Therefore, the imposition of limitations on contingency fees is appealing to companies that lobby for them because consumers will feel less compelled to file actions regarding harm caused to them by products and services as the prospective damages will not justify the time and expenses associated with the litigation.
Forced arbitration is an issue concerned with the 2011 United States Supreme Court holding that the Federal Arbitration Act (FAA) of 1924 allows companies to take away citizens’ basic right to civil injury trial, forcing them into the private, corporate-designed system for resolving their disputes in court. Specifically, in AT&T Mobility LLC. v. Conception, the Court rules that even in cases when existing state law protects individuals from abusive forced arbitration clauses, the FAA trumps such laws (Sternlight, 2012). This is a problem because of several factors; first, the judicial system is intended to neutralize imbalances between parties through substantive and procedural rights. However, arbitration does not allow for achieving this because arbitrators are often on contract with corporations against which claims are being brought. Moreover, it is the company and not the victim that is allowed to select an arbitrator in their case. Consequently, an inherent bias and self-interest are created on the part of the arbitrator, who is motivated to make a ruling in a way that will attract future business. Simultaneously, arbitration companies have a financial incentive when it comes to siding with corporations that repeatedly bring cases to them.
Corporations have been found guilty of interfering with judge elections through their financial influence. For example, between 2001 and 2003, the US Chamber of Commerce-preferred candidates won twenty-one out of twenty-four judge elections (Corriher, 2012). The Chamber was found to have spent one million dollars to aid in the 2006 campaign of two justices in the Ohio Supreme Court, while in the 2012 high court election in Alabama, the money from the state’s Chamber comprised 40% of total campaign spending (Corriher, 2012). Therefore, due to their financial power, corporations have the capacity to influence elections by spending more money on the campaigns of their preferred candidates. Getting as many pro-corporation judges into high Justice positions is a long-term investment for companies that will expect the judges to make decisions in their favor if necessary. This trend is particularly ominous for individuals who may sue corporations as pro-corporate judges are less likely to rule in favor of consumers, with around 70% of cases being ruled in favor of businesses (Corriher, 2012). Before the issue is given significant attention on the part of legislators and policymakers, it is expected that companies will continue influencing judges’ elections because of the influence and financial power they possess.
References
Corriher, B. (2012). Big business taking over state supreme courts. Web.
Doroshow, J. (2016). Tort reform: blocking the courthouse door and denying access to justice. Web.
Finley, L. (2004). The hidden victims of tort reform: Women, children, and the elderly. 53 Emory L.J. 1263. Web.
Sternlight, J. R. (2012). Tsunami: AT&T Mobility LLC v. Concepcion impedes access to justice. Web.