The Truth About Torts
The Campaign for 'Tort Reform': Undercutting Vital Protections
In recent years, efforts to rein in excesses of corporations have run head-long into an assault on individuals' right to bring suit against manufacturers whose products or activities cause them harm. This push for what its backers call “tort reform,” has been driven by a seemingly endless stream of thinly fact-checked anecdotes about frivolous lawsuits and by a brazen effort to blame the rising costs of health care on malpractice lawsuits.
CPR’s Member Scholars have conducted extensive research on the topic, and in a series of reports on various aspects of the subject, have debunked most of industry’s claims about the need for tort reform. Indeed, the push for tort reform is at its core an effort to protect industry from its own excesses. By limiting the dollar damages citizens can seek in court, industry hopes to make unsafe and polluting practices less financially risky. And by denying citizens access to the courts, industry hopes to make such practices all but free of risk.
Nevertheless, the myth of the "Lawsuit Crisis" has taken root, the result of years of pounding by corporate interests intent on enacting "tort reform" that protects them from the harm their products and practices cause.
In recent years, the effort to protect industry from accountability in court has taken a new turn, as various industries have lined up before state legislatures and Congress seeking legislation granting broad immunity from litigation resulting from their tortious behavior. In 2012, for example, the federal “Domestic Fuels Act” (DFA) sought to grant immunity to purveyors of ethanol and other fuel additives. Such bills are the next wave of the attack on corporate accountability. CPR Member Scholars Thomas O. McGarity and Sidney Shapiro, with CPR Policy Analyst Nicholas Vidargas, explored the phenomenon in their March 2013 white paper, Sweeping Corporate Immunity for the Fuel Industry: The Next Front in the "Corporate Accountability" Wars
(CPR White Paper 1303).
Among other things, CPR Member Scholars’ work in this area includes multiple installments in the Truth About Torts series:
- Corporate Immunity. In Sweeping Corporate Immunity for the Fuel Industry: The Next Front in the "Corporate Accountability" Wars (CPR White Paper 1303, March 2013), CPR Member Scholars Thomas O. McGarity and Sidney Shapiro, with CPR Policy Analyst Nicholas Vidargas, explore corporate efforts to gain sweeping immunity for their tortious behavior.
- MedMal. Tort reform and health care industry lobbyists argue that "frivolous lawsuits," and "sky-high jury awards" are driving the high cost of health care. CPR's The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice "Reform" debunks the myth. It's CPR White Paper 1203, March 8, 2012, by CPR Member Scholars Sidney Shapiro and Thomas McGarity, and CPR Policy Analysts Nicholas Vidargas and James Goodwin. Read more about the report, and read the news release.
- Hobbled Law, Hollow Regulation. In a 2011 report, CPR Member Scholars Alyson Flournoy, Sidney Shapiro, William Andreen, and Thomas McGarity, joined by CPR Policy Analyst James Goodwin, explained how that played out in the case of the BP Oil Spill in The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected (CPR White Paper 1101). Read the news release, and Sidney Shapiro's blog post on the report.
- Interactive Map of BP Oil Spill. Want to see how regulatory failure and constraints on civil justice helped create the BP Oil Spill and make it harder for victims to recover? See CPR's CatastropheWatch Interactive Map of the BP Oil Spill
- Twombly Case and Access to the Courts. Recent Supreme Court rulings have made it harder for deserving plaintiffs to get their cases heard in court. Read about CPR's May 2010 white paper on the subject, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, by CPR Member Scholars William Funk, Thomas McGarity, and Sidney Shapiro, with CPR Policy Analyst James Goodwin.
- Truth About Torts VII: Federal Railroad Administration. Read The Truth About Torts: Regulatory Preemption at the Federal Railroad Administration, by CPR Member Scholars Thomas McGarity, Sidney Shapiro, William Funk, and Nina Mendelson, and CPR Staff Jennifer Marshall and James Goodwin.
- Truth About Torts VI: Rethinking Regulatory Preemption. Read CPR's white paper, The Truth About Torts: Rethinking Regulatory Preemption and Its Impact on Public Health (#902, 2 meg download), March 2009, by CPR Member Scholars William Buzbee, William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and CPR Policy Analyst Matthew Shudtz.
- Wyeth vs. Levine. In March 2009, the U.S. Supreme Court handed down its ruling in Wyeth vs. Levine, rejecting an argument from pharmaceutical giant Wyeth that a woman harmed by one of its drugs could not bring a lawsuit against the company because the FDA's approval of the drug's label effectively preempted litigation under state tort law. The Court held for the woman on a 6-3 vote. CPR Member Scholars have produced a variety of materials on the Wyeth vs. Levine case. Read a pre-decision op-ed by Member Scholar Thomas McGarity, "Court Takes Up Preemption Doctrine," in the November 28, 2008 Austin American Statesman. Read a post-decision op-ed by McGarity, A Rare Win for Consumers" (91 kb download), in the March 6, 2009 Dallas Morning News. The same op-ed was also published in the Houston Chronicle, March 7, 2009, "A Victory for Consumers in Pre-emption War," and in the March 9, 2009 Austin American-Statesman, "Wyeth vs. Levine is a Rare Win for Consumers." Read McGarity's editorial memorandum in advance of oral arguments before the Supreme Court, issued October 29, 2008. Read a post-decision editorial memorandum (56 kb download) by McGarity and fellow Member Scholar Nina Mendelson, issued on March 6, 2009. Read a day-of-decision press statement by Nina Mendelson.
- Truth About Torts V: CPSC and Regulatory Preemption. Read about efforts by industry and CPSC to preempt citizen suits against manufacturers of dangerous products. Read CPR's White Paper on the subject, The Truth About Torts: Regulatory Preemption at the Consumer Product Safety Commission, by CPR Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz, published December 18, 2008.
- Proposed Executive Order on Agency Preemption. Read Limiting Federal Agency Preemption: Recommendations for a New Federalism Executive Order (1.2 meg download), by CPR Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, and David Vladeck, and CPR Policy Analysts Matthew Shudtz and James Goodwin, November 2008, White Paper 809. In it, the authors propose an Executive Order on agency preemption of state laws.
- Austin American Statesman Op-Ed. Read "Court Takes Up Preemption Doctrine," by CPR Member Scholar Thomas McGarity, published in the November 28, 2008 Austin American Statesman, on Wyeth vs. Levine.
- Op-Ed on the Roof Crush Rule and NHTSA Preemption Efforts. Read "Beware Dangers of Roof Crush Rule," by CPR Member Scholars Sidney Shapiro, Nina Mendelson, and William Funk in the August 4, 2008 Winston-Salem Journal, on the dangers of agency preemption, in the context of the NHTSA's "roof crush" rule.
- Truth About Torts IV: NHTSA Overreaches. Read The Truth About Torts: Regulatory Preemption at the National Highway Traffic Safety Administration, by Member Scholars William Funk, Thomas McGarity, Nina Mendelson, Sidney Shapiro, David Vladeck, and Policy Analyst Matthew Shudtz. CPR White Paper 804, July 2008. And the news release. And see our NHTSA Preemption page.
- Truth About Torts III: Preemption. Read The Truth about Torts: Using Agency Preemption to Undercut Consumer Health and Safety, by William Funk, Sidney Shapiro, David Vladeck and Karen Sokol, White Paper 704, September 2007. Read the news release.
- Truth About Torts II: Corporate Immunity. Read The Truth about Torts: Lawyers, Guns, and Money, by Thomas O. McGarity, Douglas A. Kysar, and Karen Sokol, White Paper 603, July 2006.
- Truth About Torts I: Malpractice. Read "The Truth about Torts: An Insurance Crisis, Not a Lawsuit Crisis," by Thomas O. McGarity, Douglas A. Kysar, and Karen Sokol, White Paper 509, June 2005.
- A CPR Perspective. CPR Member Scholars have authored articles on related topics, as part of the CPR Perspectives Series. These include Perspectives on Corporate Accountability, Corporate Behavior, Medical Malpractice and Tort Reform.
Editorial Memo on NHTSA and state emissions standards.
Read CPR Member Scholar Rena Steinzor's April 28, 2008 editorial memorandum
on the NHTSA’s effort to preempt state emissions standards with its April 2008 vehicle mileage standards.