That there is widespread discontent with the tort system is surely an understatement. Most public discourse takes it as axiomatic that and proposals to reduce general levels of accountability and remedy for injury. The noisiest proponents of tort reform, so called, have wrapped themselves in the mantle of common senses-certainly cause for suspicion.4 In this "common-sense" view, there are too many tort claims: Americans sue too readily, "at the drop of a hat"; egged on byavaricious lawyers, they overwhelm our congested courts with mounting numbers of suits, including many frivolous claims. Irresponsible juries, biased against deep-pocket defendants, bestow windfalls on undeserving plaintiffs, particularly arbitrary and capricious damages for pain and suffering and random outsize awards of punitive damages. Not only are the untold billions that the system costs an alarming drain on national wealth, but the system stifles enterprise and innovation, depriving society of useful products and services and undermining the international competitiveness of American business. To avoid these effects, we need to adopt various "tort reform" proposals to inhibit claims (e.g., loser-pays) and limit awards (e.g., eliminating joint and several liability, capping damages, etc.). Outcroppings of this "common-sense" view are so numerous that I confine myself to a few recent examples. The first is from a longrunning "public service" advertisement by the Mobil Corporation: Americans have become a litigious lot. And no wonder. For some, the civil justice-or the tort system-has become a grand jackpot, providing windfalls to plaintiffs and their lawyers. Jury awards for punitive damages grab headlines as they've spiralled into the millions, not to mention billions of dollars. And thanks to the concept of joint and severa1liability, plaintiffs' attorneys trolling the waters in the hope of landing a big one, have cast their nets in an ever-widening circle that promises to choke business and clog the courts. And these represent just the tip of the iceberg. Countless cases are settled before trial because defendants with seemingly deep pockets (big companies, professionals, etc.) are paralyzed by the threat of huge jury awards and/or the likelihood of paying damages grossly out of proportion to their share of the blame. The result is a system out of balance, tilted to favor plaintiffs and reward their lawyers. The losses to society in the form of higher product and insurance costs, less innovation, fewer jobs and reduced availability of services are enormous. Tort reform is a front-door effort to bring down the cost of doing business, making American companies globally competitive and freeing citizens from the excessive costs of our current civil justice system.5 Commenting on the performance of the criminal justice system in the Simpson trial, a prominent Washington lawyer and former United States assistant attorney general observed: The civil justice system seems equally demented, with freakish punitive damage bonanzas for persons who pour coffee on themselves or ricochet golf balls into their own foreheads. Immense class-action settlements benefit mostly lawyers, while actual victims of misfortune are further victimized by the system to which they tum for relief. 6 Former Vice President Quayle, in his memoirs, weaves together many of these themes in the following story: We have become a crazily litigious country. Today a baseball comes crashing through a window, and instead of picking it up and returning it to the neighbor whose kid knocked it through-and who pays the glazier's bill in a reasonable, neighborly way-the "victim" hangs on to the baseball as evidence and sues the neighbor. (Or the baseball's manufacturer. Or the glassmaker. Or usually all three.) Several lawyers are soon billing hours, and the civil docket has been further crowded by one more pointless case that's probably going to be part of the 92 percent of cases that get settled before they come to trial-but not before a huge amount of time and money has been wasted on everything from "discovery" to picking a jury that will be discharged before it ever deliberates this case that shouldn't have gotten
