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
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, eliminating
the traditional idea of contributory negligence and granting huge
judgments even when the plaintiffs were largely responsible for
their own injuries. …