Tuesday, July 25, 2006

The People v. "The Point"

I’ve joked in the past about the fact that the numerous people who have been slandered by Mark Hyman could file a class action lawsuit against him. Perhaps that’s one reason Hyman waxes rhapsodic about the need for “tort reform” that would take away the rights of people filing class action lawsuits against corporations to get proper compensation.

A more likely explanation is that many on the
radical right see “tort reform” not as an end in itself, but a means of going after one of the few major industries gives money primarily to Democrats, as well as protecting the large corporations that give overwhelmingly to Republicans.

Rhetorically, Hyman uses three main tools in his editorial: invoking fear, guilt by association, and implying a false cause/effect relationship.

The fear takes the form of Hyman quoting the American Tort Reform Association’s assertion that lawsuit “abuse” costs Americans $260 billion in 2004. Of course, what constitutes “abuse” isn’t made clear, nor does Hyman explain how Americans in general are bearing the burden of the cost. Instead, Hyman simply suggests that “greedy lawyers” and “corrupt judges” are conspiring to rob average American’s blind.

What goes unmentioned is that class action lawsuits are the primary defense consumers have against huge government and corporate entities. “Tort reform” amounts to limiting the rights of consumers to seek damages if they suffer from governmental or corporate negligence. From Brown vs. Board of Education to lawsuits against Big Tobacco, class action lawsuits have helped average Americans fight the powers that be when they get trampled underfoot by allowing them to band together rather than take on monolithic (and deep pocketed) entities on their own.

Hyman uses guilt by association when he cites the
recent indictments against a specific law firm that specializes in class action lawsuits. As critics note, however, it’s a bit dicey to indict an entire company when the charges may largely be attributed to specific individuals within that firm. Hyman goes a step further and uses the indictments as evidence not only of this particular law firm’s collective corruption, but the supposed systemic problems with class action lawsuits.

The logical fallacy involved with such a generalization is clear enough. Moreover, Hyman conveniently drapes the mantle of “Defender of the People” around the champions of "tort reform,” failing to acknowledge the critical role class action lawsuits play in leveling the playing field between individual citizens and consumers and the entities that they must take on when suing for damages.

Lastly, Hyman implies that tort “reform” is a way of dealing with the corrupt lawyers and judges he says are fleecing Americans. But there’s no logical connection there. Certainly, there are cases of lawyers who file frivolous lawsuits against companies, just as there are companies that through a combination of negligence, selfishness, and malevolence harm individuals (Philip Morris, anyone?). But as Hyman’s own argument notes, there are already laws on the books that allow for the prosecution of such abuses. What is euphemistically called “tort reform” puts arbitrary limits on all class action lawsuits, no matter how valid they are. It’s a solution in search of a problem.

Unfortunately, history shows that there are always going to be corporations out there that put profit ahead of customer safety. When they do, they need to be held accountable in a way that will ensure they don’t have a financial incentive to cut corners again. Particularly when the damages are spread out over a huge number of customers (say, a pharmaceutical company overcharging for a medication by $25 per prescription), it is impractical for customers cheated out of their money to sue as individuals.

“Tort reform” is more accurately labeled “consumer rights limitation.” When companies, the government, lawyers, or anyone else breaks the law or does harm to others, they should be held responsible. Giving corporations special protections not offered to ordinary citizens reduces accountability and responsibility.

At a time when many huge corporations pay for political campaigns, command fealty from so many of the “people’s” representatives in Congress, and even participate in corrupt quid pro quo arrangements with ethically crippled legislators, it’s ludicrous to claim corporate America needs special rights, and it’s wrong to try to convince average Americans that it’s somehow in their own best interest to give up their rights to seek justice.

And that’s The Counterpoint.

Hyman Index: 4.74


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