Posts in "Common Law"

Why conservatives should be against tort reform

Apr 11, 2012 at 6:17 PM

While it has not received the same attention in recent years that it used to garner, “tort reform” has traditionally been an idea that has been espoused by the political right. The argument usually is that there is an excessive amount of frivolous litigation that is clogging up our legal system and hurting American businesses. My goals in this post are threefold. First, I will explain the basics of the tort system to give a background to readers who are not familiar with this topic. Second, I will argue that tort reform as it is currently debated is not in the least a conservative idea. Finally, I will explain why, if tort reform is not a conservative idea, so many conservatives nonetheless argue for it.

What are torts, and why/how would we reform them?

The most basic definition of a tort is a civil wrong. However, this simple definition belies the breadth of just how many things are encompassed within the word “tort.” Torts include things from simple battery to professional malpractice, from wrongful death to infliction of emotional distress. For the most part, any wrong committed between two people that you cannot neatly fit into some other legal category like property or contract probably falls within tort, and sometimes actions that fall within other legal frameworks also have tort applications. For example, if I were to murder someone, I probably would have charges brought against me by the state in a criminal proceeding, but I also could have a wrongful death action brought against me by the victim’s family – hence the famous distinction between the criminal and civil trials of O.J. Simpson.

A legal argument for less regulation in the U.S.

Jun 10, 2011 at 9:43 AM

By Elliot Engstrom

I'm interning for a month in Aix-en-Provence, France with a French law firm. As I have a few minutes of free time, I thought I'd throw out some of the perspective my time working at a French law firm has given me on the costs and benefits of the American and French legal systems. A lot of what I write below might seem like obvious things to many readers, especially those who have studied history or law at all, but I just want to lay out all of the important facts so that even those readers with a very elementary knowledge of law can follow along.

Note: This is a long article, and I don't expect everyone to read it. Therefore, these two paragraphs in italics sum up my point:

Common law countries traditionally have less regulation but more litigation, while civil law countries have the inverse setup. With more litigation and less regulation, we only have the courts deciding disputes when actual wrongs have occurred, contrary to an over-regulated system where companies are punished by the government for things they have not even done yet.

I think that the United States' traditional model of allowing a huge amount of litigation while having relatively small regulation has served us well, as it has allowed our economy to grow while punishing companies in court if and when they actually do something wrong. However, now that we are maintaining our massive amount of litigation AND adding on a suffocating amount of regulation, we threaten to suffocate our economy and stifle any growth by businesses attempting to be honest who fear they will be punished at every term by both litigation and regulation.

Now, if you want to know the historical background and rationale for why I wrote the above paragraphs, keep on reading: