Academic journal article Brigham Young University Law Review

Behind the Curtain of Tort Reform

Academic journal article Brigham Young University Law Review

Behind the Curtain of Tort Reform

Article excerpt


In the 1939 movie, The Wizard of Oz, Dorothy, Scarecrow, Lion, Tin-Man, and Toto all go to meet the Wizard of Oz after melting the Wicked Witch of the West.1 As they are impressed and frightened by the loud voice and pyrotechnics going on around the Wizard, Toto, Dorothy's dog, proceeds to pull back a curtain revealing the Wizard of Oz as an old man running an elaborate machine of fire, smoke, and loud noises to intimidate Dorothy and her friends. In this article, I hope to draw back at least some of the curtain2 of tort reform to see the tort system for what it really is, and what it really is not.

A tort is "[a] civil wrong, other than breach of contract, for which a remedy may be obtained." 3 The term, "tort," encompasses a wide range of non-contract disputes outside of criminal culpability. The tort reform debate "has been especially heated when it comes to medical malpractice."4 Thus, this article will mainly discuss tort reform issues in the context of medical malpractice torts; however, it will also address the importance of tort reform in other areas of the law.

The purposes of the tort compensation system inform any discussion of tort reform. Most commentators agree that these purposes are to: (1) compensate injured parties and (2) deter future inappropriate behavior.5 John Goldberg offers a more comprehensive purpose and definition of tort law:

[T]ort is best understood as a law for the redress of private wrongs. Taking seriously tort's structure, vocabulary and 'grammar', leads one to grasp that the point of this body of law is to articulate duties of conduct that individuals and entities owe to one another, and to empower those injured by breaches of these duties (i.e., by wrongs) to invoke the law to go after their wrongdoers. Tort law, in other words, is best theorized as a special kind of victims' rights law. As such, it promises to deliver various goods within our liberal-constitutional system of government apart from deterrence and compensation, even though it will sometimes deliver those as well. In particular, it reinforces and refines norms of responsible conduct, helps sustain a distinctively liberal notion of civil society, assures citizens that government is committed to attend to their complaints on a more or less individualized basis, and avoids excessive reliance on top-down regulation.6

Goldberg's more comprehensive thoughts on the purpose of the tort system are instructive in analyzing the arguments for and against tort reform. In a sense, his thoughts give a type of measuring tool to determine whether the reforms, made or proposed, will better assist the tort system in accomplishing its goals.

This Article will address a wide variety of arguments for and against tort reform, and will discuss possible solutions to improve the current tort system. My purpose in writing this Article is not to offer a definitive solution to the tort reform debate, but instead to accurately present and analyze tort reform issues in the hope that someday a "wise agreement"7 will be negotiated that meets the needs of all parties involved in the tort system.


The following subsections are a general overview of the arguments often made by proponents of tort reform. To start, I provide a high-level overview of the purposes and goals of tort reform. Next, I discuss typical tort reform arguments, including: unreasonable litigation, harm to physicians, undeserving parties, and tort reform success stories.

A. The Purposes and Goals of Tort Reform

In a general sense, tort reform often "refers to legislative proposals or enactments that modify the common law rules of torts."8 From a less formal point of view, tort reform often means passing laws to deter outrageous jury verdicts and windfall recoveries to undeserving parties. In essence, tort reform is a political agenda developed in response to perceived problems with the current tort system. …

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