Isn't there a pretty severe disconnect between the professional literature on lawsuits (empirical studies from political science / law) and the popular understanding, encouraged by the media and Republicans? Kinsley simply assumes the truth of the excessive awards argument without much empirical backing. Cato, of course, is hardly objective here. . .
I'll see if I can dig up some references.
I'm sorry to appear in your comments only to sound contrary notes, ogged, but that Kinsely article was and remains crazy. The beef tallow suit vs. Micky D's is a great example of the system working as advertised. McDonalds lied to customers. We want to discourage that behavior, and a nasty damage award does that. Kinsely, in classic (to borrow a Kausian phrase) money liberal fashion, focuses only on aggrieved hindus getting a windfall. But the point here is that of the civil law as a stick to maintain honest business practices.
This is Kinsley at his most glib and pharisitical. Is it "justice" when money gets redistributed from corporation X to some poor shlub? Well, if I got fired from my job because a bogus law suit cost my company 3 million, I'd be fucking pissed. As would we all.
Look, I understand that it's a tenet of Kinsley's faith that "justice" means as "equalizing outcomes for unlucky shlubs." Many not so blinkered as Kinsley think social insurance and equalizing transfers shoulf be important policy goal. Hey, me too! Whether the law is the correct vehicle to achieve that outcome constitutes almost the whole of (correct) wing criticism of tort law excess. By using the *legal system* to effect sporadic "justice" of this kind, you a) introduce immense externalities (punishing the innocent and driving up costs of doing business, for example), b) reward the loud and well lawyered, not the "truly needy" (c.f. the shameful abestos suits), and c) try to win in the courts what you can't win at the ballot box, thus politicizing the law. Kinsley doesn't appear to understand these objections even exist. As with many complex issues (abortion, stem cells), he appears incapable of grapsing what the opposition is on about. He is, however, pretty funny.
I prefer the contrary comments, baa. Kinsley calls justice by civil trial, "crazy, random," but prefers it to nothing at all. Is your response that it *is* worse than nothing because of the increase in the cost of doing business?
A couple other points/questions:
What's your issue with the asbestos suits? (Have a friend who's a plaintiff's attorney on these suits.)
I'm totally unsympathetic to the "can't win at the ballot box" argument, because, on these issues, interest groups really do dominate on both sides, and the concerns of citizens are barely considered.
Allow then to continue venting in a contrary fashion! If I say "interest groups on both sides" prevent my election as emperor, that's damn weak. Kinsley thinks his policy preferences should be law. He can't get the better social insurance he wants (or., at the Con Law level, the abortion he wants, or the gay marriage he wants, or the restrictions on the death penalty he wants) via democratic action. That's not because monied interests cause gridlock, it's because the public, as a whole, dosen't agree that a poor shlub whose wife died in surgery should get a 2 million dollar transfer payment for being a poor shlub. No one wants to sign on to this brute-luck equalizing project. Sorry! Try Canada!
So on the absetos cases, it is by no means clear that most of the money is actually going to people who are dying of mesothelioma. They don't necessarily get legal priority to the money. Here's the fruits of lazy googling as a sample.
As for the "random justice or not justice" point: it's not justice! At best, it's random brute luck equalization, which is worse than nothing at all when it punishes the innocent, directs fund to those who complain best, not those most harmed, is separated from (and damaging to) the regulative goal of civil law, and drives up costs and inefficiency globally. This doesn't strike me as a left right issue, but as a princpled/unprincipled issue.
Whew!
On a side point, are you at all sympathetic to the "can't win at the ballot box" issue on Con Law topics? Would you complain if a unscrupulous libertarian court decided that minimum hours laws are unconsitutional because they violate a "right to contract?"