Talk:Tort reform in the United States/Archive 2

'''DO NOT EDIT OR POST REPLIES TO THIS PAGE. THIS PAGE IS AN ARCHIVE.'''

This archive page covers approximately the dates between 20 September 2005 and 16 October 2005.

Post replies to the main talk page, copying or summarizing the section you are replying to if necessary.

Please add new archivals to Talk:Tort reform/Archive03. (See How to archive a talk page.) Thank you. FRCP11 15:30, 17 October 2005 (UTC)

Structure of Article
I think it is unwise to structure the article the way it has been revised. One section should be for the pro arguments made by tort reform advocates, on one for the con arguments made by opponents. It was set up in this manner yesterday, and I thought that was wise. Dividing the article in this way will permit the debate to settle down. It will encourage the respective arguments to be refined. It will make for a more clearly understandable article to the reader. Otherwise, it invites one side to try to frame the arguments of the other side with too many additional clarifications. In a sense, it invites parties to dispute and sabatage the arguments of one another so that arguments become a muddled mess.

--Whitfield Larrabee 14:48, 23 September 2005 (UTC)


 * Organizationally, it's easier for the reader to follow the issues by an organization of A/~A B/~B C/~C D/~D than one of ABD~B~C~A~D, which was the way it was. I fail to see what's wrong about the likelihood of someone refining the arguments. There were several claims that were made in the anti-reform section that were categorically false, and it's useful to have the other side juxtaposed.  For example, you had quoted Graham in the opposition section, when Graham's study is one of the leading arguments against the current product liability system.  It doesn't make sense to split Graham's conclusions between pro and con--far better to have all of Graham's conclusions in one place.  If someone is misframing (and I see no evidence that anyone is misframing), it can be edited.  Please read the FAQ, as you continue to violate Talk page style conventions.  -- FRCP11 15:18, 23 September 2005 (UTC)

Junk science
I have deleted the following POV statement, placed in the middle of the politics section: State and federal courts have strict rules for determining the admissibility of scientific evidence and these rules empower judges to exclude such evidence as is unreliable or based on "junk science." First, the fact that the Supreme Court narrowed the federal evidentiary rules in the mid-1990s is irrelevant to the debate over whether John Edwards used junk science in the 1980s. Second, there is already a discussion about expert witnesses earlier in the article in the discussion of proposed procedural reforms. Third, the claim is POV, because the tort reformer position is that existing expert evidence requirements are insufficiently strict, especially in state courts. E.g.,, , , , ,. FRCP11 00:58, 20 September 2005 (UTC)


 * SKEWING OF ARTICLE PROBLEM. Deleting of the fact that State and federal courts have strict rules for determining the admissibility of scientific evidence and these rules empower judges to exclude such evidence as is unreliable or based on "junk science." will skew the article.  The fact that the tort reform position would like to restrict expert evidence even further does not mean that existing court rules permit junk science.  Every state follows either the Daubert rule or similar rules promulgated at the state level.  Not state court permits "junk science."  If I asked a judge to admit in evidence a "junk science" study, I can assure you it would be excluded.  Use of terms like "junk science" in the article without quotes makes the article a forum for the talking points of the extreme right wing editors of the web sites that you cite. The deletion of this quote is part of a pattern of nearly full time effort to skew the article to recite the view points of Walter Olsen, Ted Banks and the Manhattan Institute.

--Whitfield Larrabee 00:41, 16 October 2005 (UTC)


 * Whitfield, you're factually incorrect about the Daubert rule. Look it up; many states have rejected it.  And look up the silicosis scandal, where junk science was most definitely used in many cases for years before one brave judge stood up to it.


 * The term "junk science" appears only in the sentence "reformers criticized the suits as relying on junk science, while Edwards denied the allegation." Since the suits occurred before the Daubert case, your point about whether junk science is currently permitted by courts is irrelevant to this particular article.  -- FRCP11 02:25, 16 October 2005 (UTC)

"Liberal supporters of tort reform"
I've been following (and been on both sides of) the debate since law school, and I've never seen anyone use the term "tort reform" to describe "laws and policies that increase business and governmental accountability to consumers, patients, taxpayers and the general public." While some certainly object to the use of the term "reform" (and I've added a paragraph accordingly that does not disrupt the flow of the article, as the original addition did), I've never seen opponents try to co-opt the term for their own agenda. Even the Association of Trial Lawyers of America, which opposed such basic reforms as the Class Action Fairness Act of 2005, uses the term "tort reform" as something that it stands in opposition to. For better or worse, it's the term that's in use.

Throughout the 1980s and 1990s, many liberals supported tort reform in the every-day sense of the word. George McGovern, the most liberal Democratic presidential nominee ever, and 2000 Democratic Vice Presidential nominee, Joe Lieberman, are tort reform supporters, as is Bill Clinton's solicitor general, Walter Dellinger. Justice Stephen Breyer, appointed by Clinton, has written articles that are certainly sympathetic to tort reform, and he and John Paul Stevens, part of the court's liberal wing, provided the fifth vote to hold that the Constitution places limits on punitive damages. (Scalia, Rehnquist, and Thomas dissented.)  And prominent trial lawyer Mark Lanier, who won the Ernst v. Merck Vioxx case, is a Christian conservative who plans to seek the Republican nomination for Senate. This isn't an issue that cleaves cleanly across liberal and conservative lines. FRCP11 03:16, 22 September 2005 (UTC)


 * Editor FRCP11 repeatedly deletes references which introduce the idea that there are differing meanins and understandings of what tort reform should be. By excluding any discussion that intellectual disputes exist or that this term is not the property of conservative right wing groups, FRCP11 seeks to dictate a particular point of view in this article.  Yet another example is FRCP11's deletion of the following:


 * "The use of the term "reform" is controversial, because individuals with opposing viewpoints with respect to changes in the civil justice system each could call themselves advocates of reform. Conservative advocates of "tort reform" are generally in favor of "free markets," privatization of government functions, restricting litigants' rights and weakening regulatory constraints on business. Liberal advocates of "tort reform" favor laws and policies that increase business and governmental accountability to consumers, patients, taxpayers and the general public.


 * An analysis of the primary advocates of right wing "tort reform" shows that this movement is primarily driven by an interlocking network of industry funded foundations and self described conservatives and Republicans.


 * Ascribing the term "reform" to only on point of view is inherently advocating for that point of view.--Whitfield Larrabee 14:27, 22 September 2005 (UTC)


 * Whitfield Larrabee's response fails to address anything in my critique. This is poor Wikiquette; if I'm wrong, tell me why I'm wrong.  WL still hasn't given an example of anyone using "tort reform" to describe "laws and policies that increase business and governmental accountability."  As such, his proposed edit is purely fictional.  The current article discusses the controversy over the use of the term "reform", "Opponents of tort reform sometimes object to the use of the term "reform" to describe the proposed changes to the law, because they believe it would make the civil justice system worse, rather than better," but once again WL has failed to read what is in the article before complaining about it.  This is an encyclopedia, and not the place for WL to make an argument about what tort reform "should be."  A wikipedia article is descriptive, rather than normative, and, in 2005, "tort reform" refers to reforms of the civil justice system to reduce its costs.  FRCP11 14:38, 22 September 2005 (UTC)


 * The compromise "For example, statutes strengthening victim's rights to sue for corporate fraud and abuse, environmental destruction, or violation of important rights can equally lay claim to the term "tort reform."" suffers from the same problem as the original: nobody has ever called Sarbanes-Oxley or the Clean Water Act tort reform. As such, it's not descriptive, and certainly doesn't belong in the opening paragraph.  FRCP11 15:37, 22 September 2005 (UTC)

An anonymous user, who has spelling habits suspiciously like other writers here, wished to insert the clause Some opponents also contend that the term can also describe changes to the tort system that would increase corporate, individual and governmental accountability by enhancing the ability of individuals to bring suits and seek redress in court when they have been or believe they have been harmed. Once again, however, there is no cite for this claim, which, until someone demonstrates a single example outside of this talk page where this is so, will continue to be deleted as presumptively untrue. Cite your sources and read the FAQ, please. -- FRCP11 04:16, 16 October 2005 (UTC)

Corporate lawsuit abuse
I'm fairly familiar with the loser-pays debate, and have never seen anyone argue that the reason there shouldn't be loser-pays is because the prevailing-plaintiff rule in private-attorney-general suits is better. Judging by the history of the edit, where the editor originally confused "loser pays" with "prevailing plaintiff," and then invented a new argument when it was pointed out the first one was factually incorrect, I strongly suspect that the editor made up the argument himself, which would make the sentence original research, and thus inappropriate for Wikipedia. But I won't delete it if there's a source for the claim that tort reform opponents other than the editor are making this argument. -- FRCP11 04:42, 28 September 2005 (UTC)

"New York attorney general Eliot Spitzer and Oklahoma attorney general W. A. Drew Edmondson submitted a letter to Congress expressing their opposition to the enactment of CAFA. The attorneys general from California, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, New Mexico, Vermont, and West Virginia joined in the letter, noting, “[I]n these times of state fiscal constraints, class actions provide an important ‘private attorney general’ supplement to our efforts to obtain redress for violations of state consumer protection, civil rights, labor, public health and environmental laws."

http://www.dcbar.org/for_lawyers/washington_lawyer/september_2005/classact.cfm

See also, http://www.mythago.com/comments.php?id=A115_0_1_0_C, opposing revisions to consumer protection laws by "tort reformers" due to elimination of private attorney general feature.

--Whitfield Larrabee 23:18, 28 September 2005 (UTC)


 * Once again, WL fails to observe protocol for use of the talk section. Please indent appropriately.


 * This is regarding the quote "Opponents of tort reform contend that the public is better served by statutes that contain private attorney general provisions than they would be by a "loser pays" system. They contend that that these laws encourage private citizen's to enforce consumer protection, civil rights, anti-pollution and many other laws that vindicate important public policies." As to the substance, neither of these cites has anything to do with the first sentence, which remains unsupported.  The second sentence is trivially true, but irrelevant to the "corporate lawsuit abuse" section.  If you wish to create a new NPOV section discussing the pros and cons of private attorney general actions, and the successful tort reform effort in California to rein in Section 17200, then feel free to do so.  But this has nothing to do with the question of abusive corporate plaintiffs, and thus doesn't belong in the abusive corporate plaintiffs section.  The article has an organizational structure for a reason; please stop vandalizing it by putting random arguments in random places. -- FRCP11 01:03, 29 September 2005 (UTC).

I met FRCP11's first objection and provided the source material to the assertion regarding the private attorney general point. He then nonetheless deleted the point, claiming it was a matter of form. The private attorney general point clearly responded to the loser pays position asserted by FRCP11 in the corporate abuse section. Quite clearly, a loser pays rule would void the traditional "private attorney general" rule of many statutes.

At one point the organization of the article was one section with the pro-tort reform, one section with the against tort reform section. This was imprudently modified so that the first section sets forth the pro-tort reform, while the second section is dedicated to the "debate." This organization subverts the article by making the form of article POV, slanted toward the tort reform view.

--Whitfield Larrabee 01:53, 30 September 2005 (UTC)


 * Once again, WL fails to observe protocol for use of the talk section. Please indent appropriately.


 * The claim "loser pays would be an invitation to corporate lawsuit abuse, some opponents contend" is both false and unsupported. This is your third variation of the argument, each of which is inconsistent with the previous versions, and each of which is false.  No one claims this, not least because it's a non sequitur: how does "loser pays" encourage corporate plaintiffs to abuse the litigation system?  Wikipedia is not a place for you to make up arguments.  If you don't want to be accused of vandalizing the article, stop vandalizing the article. I'm reverting because you refuse to fix the problems raised in the talk pages.  Again, this section is about the allegation by tort reform opponents that corporations are abusive plaintiffs.  If you want a section with both sides of the private attorney general question, you're free to write it.  Note the both sides point.  I'm going to simply revert if you continue to add NPOV original research that disrupts the organizational structure.  -- FRCP11 03:37, 2 October 2005 (UTC)

Tort reform and product safety section
This section covers to arguments in against lawsuits improving product safety in depth but provides no counter-arguments. Surely their must be studies or in depth arguments in support. As it stands now it simply describes the basic argument by tort-reform opponents then proceeds to knock it down with one study by a proponent of tort reform. As such it is not very NPOV. --Cab88 11:42, 2 October 2005 (UTC)
 * The study was added by User:Whitfield Larrabee, who opposes tort reform. He didn't read the study, however, so when I added the rest of the paragraph to the sentence he took out of context, it has the current result.  But it is NPOV.  Opponents of tort reform believe that the status quo improves product safety and reform would hurt it; supporters believe the opposite.  Both sides' arguments are presented.  The empirical data just doesn't support the opponents. -- FRCP11 13:11, 2 October 2005 (UTC)
 * The problem I have with the safety section is that both sides' arguments are not equally presented. While evidence, (the study by the Harvard professor), that opponents of the safety argument claim support their position, is presented, no counter studies or criticisms of the professor conclusions by tort reform opponents is offered. That is why I feel the section is currently not NPOV. It is what isn't included not what is. --Cab88 10:50, 3 October 2005 (UTC)
 * What isn't included? The anti-tort-reformers don't have a study supporting their position -- they just cite to the Graham study, and quote it out of context.  (See Whitfield Larrabee's original edit.)  The quote used in anti-tort reform publications from the Graham study is included in this article.  No one has deleted anything from the argument that tort reform decreases product safety. The article includes the full statement of the anti-tort reform position, two cites to anti-tort reform advocacy websites, and the full quote from the study that anti-tort reformers cite.  I can rewrite the section so that the anti-tort reformers have the last word, but it doesn't change the substance.  I haven't seen anyone try to refute Graham.  There are lots of pro-tort reform studies (such as the Rubin & Shepherd study showing that tort reform has saved 14,000 lives) that aren't in the article.  Empirically, it's one of those "sky is blue" vs. "sky is green" kind of things, but both arguments are stated in the article, so I don't see how someone can complain of POV.  -- FRCP11 04:18, 4 October 2005 (UTC)
 * I added a link to ATLA's page on the subject. -- FRCP11 06:03, 13 October 2005 (UTC)

sub article status for non-economic damages cap
I object to moving the issue of non-economic damages caps to a separate article. The length of the article does not require this. --Whitfield Larrabee 00:27, 16 October 2005 (UTC)


 * That's actually not true--every time I edited the article, I got a note from Wikipedia that the article was too long:


 * This page is 31 kilobytes long. This may be longer than is preferable; see article size.


 * I'm planning on moving most of the debates on individual tort reforms to sub-articles, and adding more sub-sections referring to sub-articles. -- FRCP11 02:20, 16 October 2005 (UTC)

Right Wing Skewing Problems With The Article and Proposed Permanant Point of View Tag
Many edits in this article generally focus to a great extent on viewpoints that can be found on websites hosted by the the Manhattan Institute, Ted Frank, Walter Olson, the American Enterprise Institute and other well funded enterprises funded through right foundations such as the Scaife Family Foundations, the Olin Family Foundations, the Coors Foundations, etc. Citing these web sites as authoratative sources is questionable. Much of the article is really a post from these web sites. These extreme right wing institutions create studies in which their authority is based on citing each other as authorities. You could call much of what the put out to be propaganda. Walter Olsen has written a book, the "Litigation Explosion." Clear statistical evidence shows that lawsuit filings have declined dramatically in recent years as have the amounts that juries have been awarding. To claim that there is a litigation explosion is plain and simple propaganda. This term is recited in the article. This term is a talking point often used by "Tort Reformers." Viewpoints critical of tort reform are prioritized at a lower level. For example, in the external links and the references section, pro tort reform viewpoints are given top billing while anti-tort reform view points are given lower billing. attempts to correct this are reverted. Strong arguments against economic damage caps are shunted of to sub articles. Lengthy quotes from pro tort reformers are given prominent display. There is only so much time in the day to resist this. It would be a full time job to undo all of these edits and skewing. I think it is best to just put a permanent point of view tag on the article. As another editor has noted, the article is probably hopeless at this point. --Whitfield Larrabee 00:27, 16 October 2005 (UTC)


 * The article has cites and quotes from well-funded opponents of tort reform: ATLA, Center for Justice and Democracy, EPI, Public Citizen, Commonweal Institute, and even a college student's website, "CorpReform.com". The sites of tort reform supporters are cited solely for the NPOV proposition that tort reform supporters take certain positions.  It's also utterly and demonstrably false that reformers are given top billing: in every single sub-section, the tort reform opponents' arguments are first, and in some they're both first and last; in the references section, the top reference is to a neutral CBO study; the only change I made to the order was to group like articles together--thus Walter Olson's expose' of the litigation lobby's influence is beneath the attack on the funding of CALA.  "Litigation explosion" is mentioned solely in terms of the debate over whether it exists; the statistics you assert are irrelevant to Olson's point or simply phony, but that's beside the point, because the debate is in the article, including the statistics you think should be included.  There's nothing wrong with moving the pro-and-con non-economic damages caps to a sub-article; in my mind, the pro argument is so far ahead, that it's hardly the case that omitting the details here creates problems.  You haven't identified a single specific violation of NPOV.  Your complaint is that the article is neutral, when you would prefer it to be skewed.  Read the FAQ, because it's clear you still don't understand what NPOV means. -- FRCP11 02:17, 16 October 2005 (UTC)

Who advocates tort reform and Expenditures By Tort Reform Organizations
These two sections need to be cleaned up (far too many misspellings and POV characterizations, and excessive use of scare quotes and capitalization), need to cite its sources, needs to indicate when its sources are allegations and then should be moved into the politics section, with which it is largely redundant. As an organizational matter, they certainly don't belong before a discussion of what tort reform is. There needs to be further NPOV by indicating the power of plaintiffs' lobby, ; ATLA may only have "three lobbyists", but the president of ATLA has bragged that he has the Senate under his thumb. The fact that corporation X, (who gives $10,000 to Y, which researches tort reform and fifty other issues) also funded Z forty years ago has no business in the article. I'll undertake these changes if no one fixes the article, but I shouldn't be the only here trying to make this article NPOV. -- FRCP11 03:59, 16 October 2005 (UTC)


 * Some accurate and relevant factual information was deleted in the edit this section that ought to be restored.--Whitfield Larrabee 16:16, 16 October 2005 (UTC)


 * Whitfield: much of the information you've added is not cited and, to my knowledge, factually incorrect. Your list of the biggest funders omits two of the biggest funders today, while including a foundation that no longer exists.  It's also factually untrue that there are more "pro-tort reform" front groups than "anti-tort reform" front groups.  Please cite your sources or delete the unfounded assertion. -- FRCP11 18:58, 16 October 2005 (UTC)

Deletion of References and NPOV Violations
Several important references were unilaterally deleted, see two listed below. These had been in the article for some time. The reference section and the article in general is already skewed with references to articles by Ted Frank, Walter Olsen, the American Enterprise Institute, the Manhattan Institute. As I have noted above, the article has been hijacked by advocates for the AEI and the Manhattan Institute. The Pro Tort Reform references are featured first and editor FRCP11 has gradually deleted most of the links to information that would challenge tort reform. Deletion of these sources and the skewing of the article in this manner is most inappropriate. The article, the Attack on Trial Lawyers, is well footnoted and contains a wealth of information to contradict articles such as Triallawyers, Inc. that were linked to by certain authors. The constant deleting of any views that disagree with the pro tort reform view is tiresome. If these links are deleted again, I am definitely going to put a NPOV tag on the page. I might put one there anyway.

The constant deleting of information that would contradict the pro tort reform gloss put on this article by one editor who has the time to dominate the debate here is unfortunate.


 * CorpReform.com, 2003 Oct. 30, "What Is Tort Reform - and Why Is It Bad for the Public?"
 * Commonweal Institute, "The Attack on Trial Lawyers and Tort Law" (examines use of front groups and funding sources for "tort reform")

--Whitfield Larrabee 03:04, 19 October 2005 (UTC)