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Understanding Tort Reform: Strategic Actors, Public Policy, and Feedback Loops

Published online by Cambridge University Press:  20 January 2017

Mathew Shon Manweller
Mathew Shon Manweller*
Affiliation:
Central Washington University
*
1.Central Washington University, Department of Political Science, Ellensburg, WA 98926. Email: [email protected]
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Abstract

This paper discusses the problems in the effective implementation of tort reform policy, focusing on several different areas that seek to review both the fundamental problems associated with punitive damages as well as the legal arguments in favor of tort reform. The limitations against the creation of a truly efficient system lie in the fact that strategic actors have the ability to anticipate the effects of reforms, and act to create feedback loops that diffuse the impact of the reform attempt. To implement effective tort reform policy one must understand how these strategic actors behave within the civil justice system, as well as how feedback loops limit the overall effectiveness of the tort reform policy. The findings suggest that the system of “decoupling” liability is the most efficient of all the current reform attempts or proposals, while the system can also be improved by adopting policies that isolate the incentive structures of plaintiff's attorneys.

Type
Research Article
Information
Business and Politics , Volume 5 , Issue 1 , April 2003 , pp. 95 - 125
Copyright
Copyright © V.K. Aggarwal 2003 and published under exclusive license to Cambridge University Press 

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References

Allen, William. 1977. “Commentary on the Limits of Compensation and Deterrence in Legal Remedies.” In Law and Contemporary Problems, edited by Cox, James, pp. 67–87. Durham: Duke University.Google Scholar
American Tort Reform Association. 2001. Punitive Damage Reform. Accessed at www.atra.org.Google Scholar
Apelbaum, Perry and Ryder, Samara 1999. “The Third Wave of Federal Tort Reform.” Cornell Journal of Law and Public Policy 8 (1): 591–621.Google Scholar
Baker, Tom. 1998. “Measuring the Shadow of Punitive Damages: Their Effect on Bargaining, Litigation, and Corporate Behavior.” Wisconsin Law Review 1998: 211–26.Google Scholar
Bone, Robert. 1997. “Modeling Frivolous Law Suits.” University of Pennsylvania Law Review 145 (1): 521–97.Google Scholar
Breslo, James. 1992. “Taking the Punitive Damage Windfall Away from the Plaintiff: An Analysis.” Northwestern University Law Review 86 (4): 1130–67.Google Scholar
Cochran, James. 1998. “Careful with that Tax Eugene.” Cumberland Law Review 28: 117–39.Google Scholar
Cooter, Robert. 1997. “Punitive Damages, Social Norms and Economic Analysis.” In Law and Contemporary Problems, edited by Cox, James, pp. 73–93. Durham, NC: Duke University.Google Scholar
Curcio, Andrea. 1996. “Painful Publicity.” DePaul Law Review 45 (1): 343–93.Google Scholar
Diamond, Peter. 1997. Efficiency Effects of Punitive Damages. Cambridge, MA: MIT Press.Google Scholar
Easton, David. 1957. “An Approach to the Analysis of Political Systems.” World Politics (April): 383–400.Google Scholar
Eisenberg, Theodore. 1998. “Responses: Measuring the Deterrent Effect of Punitive Damages.” Georgetown Law Journal 87 (1): 347–57.Google Scholar
Eisenberg, Theodore, LaFountain, Neil, Ostrom, Brian, Rottman, David, and Wells, Martin. 2002a. “Juries, Judges, and Punitive Damages: An Empirical Study.” Cornell Law Review 87 (1): 743–73.Google Scholar
Eisenberg, Theodore, Rachlinski, Jeffrey, and Wells, Martin. 2002b. “Reconciling Experimental Incoherence with Real-World Coherence in Punitive Damages.” Stanford Law Review 54 (1): 1239–69.Google Scholar
Evans, Benjamin. 1998. ‘ “Split-Recovery” Survives: The Missouri Supreme Court Upholds the State's Power to Collect One-Half of Punitive Damage Awards.” Missouri Law Review 63 (1): 511–33.Google Scholar
Galanter, Marc. 1974. “Speculations on the Limits of Legal Change.” Law and Society Fall: 97–151.Google Scholar
Hastie, Reid and Viscusi, Kip. 1998. “What Juries Can't Do Well: The Juries Performance as a Risk Manager.” Arizona Law Review 40 (2): 901–15.Google Scholar
Huettner, David. 1996. “An Economic Model of Illegal Profits: Deterrence and Corporate Punitive Damages.” Journal of Forensic Economics 9 (3): 325–33.Google Scholar
Hughes, Johnathan. 1990. American Economic History. Glenview: Scott, Forseman, Brown.Google Scholar
Hughes, Robert. 1994. The Culture of Complaint. New York: Warner Books.Google Scholar
Kahan, Marcel and Tuckman, Bruce. 1995. “Special Levies on Punitive Damages: Decoupling, Agency Problems, and Litigation Expenditures.” International Review of Law and Economics 15 (1): 175–85.Google Scholar
Kritzer, Herbert. 1990. The Justice Broker: Lawyers and Ordinary Litigation. New York: Oxford University Press.Google Scholar
Kritzer, Herbert. 1991. Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation. Madison, WI: University of Wisconsin Press.Google Scholar
Mabry, Cynthia. 1997. “Warning! The Manufacturer of This Product May Have Engaged in Cover-ups, Lies, and Concealment: Making a Case for Limitless Punitive Damages.” Indiana Law Journal 73 (187): 187–253.Google Scholar
Madden, Stuart. 1998. “Selected Federal Tort Reform and Restatement of Proposals Through the Lenses of Corrective Justice and Efficiency.” Georgia Law Review 32 (1): 1017–1040.Google Scholar
Maruyama, Magoroh. 1961. “The Second Cybernetics: Deviation-Amplifying Mutual Causal Processes.” American Scientist 51 (1): 164–79.Google Scholar
McKenzie, Richard. 1984. Constitutional Economics. Toronto: Lexington Books.Google Scholar
McKenzie, Richard and Tullock, Gordon. 1981. The New World of Economics. Illinois: Richard Irwin, InC. Google Scholar
Miller, Gregory. 1997. “Behind the Battle Lines: A Comparative Analysis of the Necessity to Enact Comprehensive Federal Products Liability Reform.” Buffalo Law Review 45 (1): 241–65.Google Scholar
Molot, Jonathan. 1997. “How U.S. Procedure Skews Tort Law Incentives.” Indiana Law Journal 73 (1): 58–117.Google Scholar
Polinsky, Mitchell. 1997. “Are Punitive Damages Really Insignificant, Predictable, and Rational? A Comment on Eisenberg.” The Journal of Legal Studies 26 (2): 663–77.Google Scholar
Polinsky, Michell and Che, Yeon-Koo. 1991. “Decoupling liability: optimal incentives for care and litigation.” RAND Journal of Economics 22 (4): 562–69.Google Scholar
Polinsky, Michell and Shavell, Steven. 1988. “Punitive Damages: An Economic Analysis.” Harvard Law Review 111 (3): 871–955.Google Scholar
Posner, Richard. 1973. Economic Analysis of Law. Boston, MA: Little, Brown and Company.Google Scholar
Prater, Nathan. 1995. “Punitive Damages in Alabama: A Proposal for Reform.” Cumberland Law Review 26 (1): 1005–34.Google Scholar
Sarumida, Hiroshi. 1996. “Comparative Institutional Analysis of Product Safety Systems in the United States and Japan.” Cornell International Law Journal 29 (2): 79–129.Google Scholar
Sporkin, Stanley. 1997. “Reforming the Private Sector's Role in Deterring Corporate Misconduct.” In, Law and Contemporary Problems, edited by Cox, James, pp. 93–97. Durham, NC: Duke University.Google Scholar
Sunstein, Cass, Hastie, Reid, Payne, John, and Viscusi, Kip. 2002. Punitive Damages: How Juries Decide. Chicago, IL: The University of Chicago Press.Google Scholar
Vidmar, Neil. 1995. Medical Malpractice and the American Jury. Ann Arbor, MI: The University of Michigan Press.Google Scholar
Vidmar, Neil. 1998. “The Performance of the American Civil Jury: An Empirical Perspective.” Arizona Law Review 40 (2): 850–99.Google Scholar
Viscusi, Kip. 2002. “Punitive Damages: How Juries Fail to Promote Efficiency.” Harvard Journal on Legislation 39 (1): 139–62.Google Scholar
Whittman, Donald. 1995. The Myth of Democratic Failure. Chicago, IL: The University of Chicago Press.Google Scholar