The U.S. Senate is considering legislation to fix our out-of-control legal system. But how did the system go so wrong? Was it an accident? Those ridiculous judgments where people are awarded millions (later reduced to hundreds of thousands) for spilling coffee on themselves or where muggers get $4.3 million because they are shot while trying to escape after attacking subway riders: Were these random results of an occasional jury gone awry?
And what about the $11.50 child's vaccination of which $8 is for liability coverage? The pacemaker that costs $3,000 more because of legal expenses? The football helmet that costs $200 because the insurance costs $100? All the results of mistakes in a sound system?
Not at all. Hard as it may be to believe, our legal system was put on its current uncontrolled path on purpose. Behind what citizens see now as a horror come to eat businesses, nonprofit organizations, volunteer efforts and jobs is an ideology that sought to use the court system to redistribute wealth and rectify what some people think are evils inherent in our economic system.
Steven Hayward, in a recent article in the magazine Regulation, shows that, as far back as 1944, a California Supreme Court justice, Roger Traynor, in a case against Coca-Cola, enunciated a theory that liability cases - tort cases - should be used as opportunities to set public policy. "Even if there is no negligence," Traynor said, "public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market."
The courts were to set public policy. Not only that, but even if manufacturers' products were not defective and the manufacturers were not negligent, they should be held liable because "the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business." It was an argument for using the legal system as a tax system, a litigation tax.
Traynor was still on the California Supreme Court in the 1960s handing down majority decisions that wrote this philosophy into law. Over the next two decades, as a result of the efforts of Traynor and like-minded people in other states, the philosophy spread across the country, destroying established common law wherever it went.
In this legal view, we are all victims. California began to ignore people's responsibility for their own actions, …