Talk:Tort reform in the United States

Howdy folks! Ijust added the Erie doctrine analysis, and I hope it is NPOV. I tried to disclaim that regardless of tort reform merits, it may not pass constitutional muster. I am neither for nor against tort reform, I just recognized the potential Erie problems after taking Federal Rules of Civil Procedure in law school last semester. Please feel free to edit anything that smacks of bias or that is factually incorrect. Nibblesworth 17:34, 8 April 2007 (UTC)

I haven't checked it for NPOV, but I can assure you that there is a problem of WP:NOR. (Don't mean to single you out: the whole article suffers from OR and POV, and needs severe rewriting.) Your proposed addition is also in the wrong section. If you can source the claims, let's talk about putting it in the article after we do the teardown. -- THF 18:13, 8 April 2007 (UTC)

It might not be irredeemably OR; looks like there's work along these lines. However, to my understanding, many reforms are proposed at the state level such that this isn't really a problem. It's not clear which reforms will have priority and might be an issue for federal or state reforms. The federal rules might annul state reforms in diversity cases. This recent Idaho Law Review article frames it more like this, but argues that the federal rules should trump. Needs citations in any case. Cool Hand Luke 20:18, 8 April 2007 (UTC)

There are some factual errors, too; Congress has the power under the Commerce Clause to create federal question jurisdiction, as it did in the Class Action Fairness Act. The changes to the Federal Rules of Evidence that stemmed from the Daubert decision were federal reforms that apply to diversity cases heard in federal court. "Legal challenges would quickly nullify the reform" violates NPOV, especially in the abstract. -- THF 23:30, 8 April 2007 (UTC)

THF, I don't know if there is a decent sized body of knowledge out there in regards to Erie and tort reform. The Idaho case Cool Hand Luke cited is the only one I know if (in that article is the case I cited in the edit I made). I understand your concern, and I'm not sure there's any real way to fix it (aside from deleting it). Although, I don't know if OR is required, as it is simply a matter of applying FRCP and Erie Doctrine. However, I'll leave it to you guys (obviously the ones better equipped) to decide what should stay or go, and I understand whatever decision you make. Just thought it was an important part of tort reform that seems to get overlooked and awful lot. Nibblesworth 03:22, 9 April 2007 (UTC)

Of course this is OR. The applying the FRCP is not like simple arithmetic, and the article I mentioned shows precisely why: a law professor disagrees with the District Court of Idaho even though both are dealing with the same rules and doctrine. We simply can't speak in an authoritative tone on this issue as if there's no controversy, especially since we seem to be carving out a position that has no support in any heretofore published source.

In either case, this is a small wrinkle in tort reform that can probably wait until better authorities are available. Might make a good journal topic for you though. Cool Hand Luke 04:48, 9 April 2007 (UTC)

Even if it were "simply applying the FRCP and Erie Doctrine" (which it is not) it would be OR because it would be, at best, impermissible synthesis, which also violates the WP:NOR rules. Not just the facts need to be referenced, not just the analysis needs to be referenced, but the analysis needs to be referenced with respect to this issue. There's also the "Wikipedia is not a crystal ball" issue. Not to pick on you individually: the whole article suffers from Wikipedia policy violations of WP:OR, WP:SYN, and WP:POV, and needs to be scrapped and rewritten; one can't look at it as a model of how to write an article. -- THF 10:15, 9 April 2007 (UTC)

Nibblesworth, your edits to your essay also seem to have some misunderstandings of legal issues. Why say both "federal question jurisdiction" and "42 USC 1983"? 42 USC 1983 cases are within federal question jurisdiction! You also underestimate the power of Congress to affect state civil procedure. There could be a mechanism like that in South Dakota v. Dole, where Congress withholds Medicare funds to states that fail to adopt malpractice reform; there's legislation posed in Congress now providing federal funding for pilot programs for health courts to states that wish to adopt reform using that methodology. Congress can also use federal preemption to shut down state tort law in areas within the commerce power (and the preemption debate is underrepresented in this article).

Of course, Wikipedia is about verifiability, not truth, but the factual problems of your essay demonstrate why there is a WP:NOR rule. -- THF 10:22, 9 April 2007 (UTC)

I'd be surprised if any "tort reform" bills that actually have a chance of passing Congress would be affected by the Erie doctrine. Most of this section should be removed unless it can be shown to have some real-world application. The treatment of Daubert as procedural might merit a reference to Erie, but, other than that, I don't see the point. For example, suppose Congress passed one of the insurance industry's wet dreams, a cap on noneconomic damages. Suppose the bill expressly applied to all actions in state and federal courts. I don't see that Erie would have any relevance. The bill is either a valid exercise of the commerce power, in which case it could constitutionally be applied to all cases in all courts; or it isn't, in which case it's unenforceable in any court. JamesMLane t c 17:10, 9 April 2007 (UTC)

I guess I'm looking at it from this perspective (but it's clear from the responses here that I'm just too daft to try and contribute). Congress cannot compel state courts to adopt FRCP. If tort reform were enacted by Congress, it would be codified in FRCP only. (10th Amendment) Unless individual states decided to adopt the same FRCP tort reform codes, any state tort claim appealed to a federal court would not be subject to the FRCP tort reform (damages is not cut-n-dry procedural issue--it is far too tied into a plaintiff's ability to find justice to not be substantive). Any federal question tort claim (primarily 42 usc 1983) could go to fed court and be subject to the new tort rules, but what plaintiff would file in Federal court when he knows he's capped in his damages and subject to paying legal fees if he loses? He'd go straight to state court, which would constitute "forum shopping", which is one thing Erie seeks to get rid of. If the defendant used forum non conveniens to get it moved to federal court, plaintiff could merely argue the second aim of Erie which is to reduce unequal administration of the law (he'd get $$$ in state, screwed in fed, so fed would have to go state. Regardless, I do believe there is a better way to debate the topic instead of telling me I'm a silly douche without a clue. Nibblesworth 18:50, 9 April 2007 (UTC)

No one has insulted you. And civility goes both ways. I don't think your legal analysis is correct, but this debate is irrelevant: Wikipedia is not the place to debate substantive law; the whole point of WP:NOR is to avoid these debates on the Wikipedia cite. You're welcome to contribute; but additions need to comply with WP:V, WP:NOR, and WP:NPOV. The essay you've added does not. I encourage you to understand those three rules, as it will avoid a lot of frustration with trying to edit Wikipedia. -- THF 19:24, 9 April 2007 (UTC)

Nibblewsorth, I agree with you that people should debate the topic without calling you names, but I also agree with THF that the discussion here has been fairly civil. (You think you've been insulted? You should see some of the flame wars that have erupted on Wikipedia! Some people have been banned from the project for their violations of Wikipedia:No personal attacks.)

As for the substance, I don't agree that Congressional "tort reform" would have to be incorporated in the FRCP. Some proposals, like the Idaho restriction on pleading punitive damages, are indeed procedural, but most (like my example of a cap) are substantive. If an Idaho statute were to ban punitive damages entirely, as I'm sure some people would like, then that statute would affect the injured victims' substantive rights. Under Erie, the ban on punitive damages would apply in state and federal courts in Idaho, wouldn't it? Therefore, it seems to me that any interplay between Erie and "tort reform" would be confined to a fairly narrow range of cases.

Finally, I don't think you're "too daft" to contribute -- but you have to recognize two points. First, we do have established policies that must be adhered to. They can be somewhat confusing and intimidating when you're not used to them. You should try to contribute within those policies, but if you inadvertently violate one, someone else will come along and fix it. That brings me to the second point: This is a collaborative project. Anything that anyone writes is subject to being edited mercilessly. Some people just aren't comfortable with that; they, not you, are the ones who aren't capable of contributing to Wikipedia. JamesMLane t c 19:55, 9 April 2007 (UTC)

I agree with JamesMLane. You can contribute but you must do it our way. I think that's what he means when he says we have established procedures. Also, if you write something and anyone attempts to changes it, you can revert their edits and cite the rule: "This is a collaborative project. Anything that anyone writes is subject to being edited mercilessly. Some people just aren't comfortable with that; they, not you, are the ones who aren't capable of contributing to Wikipedia." But you can NEVER cite this rule as justification for changing someone else's work, you can only cite it for your own work. I mean, you can ALWAYs cite it for changing someone else's work, but you can NEVER ALLOW anyone else to cite it for changing your work. I think I've got it now. It IS confusing at first, but you'll get the hang of it soon enough. Help me out here, JamesMLane, am I doing this right? I think it all boils down to if you are a better bully than the other editor, you get to cite the rule that says any editing of your work can be "edited mercilessly" (i.e. removed). I think that's it. BTW, the Erie Doctrine is incoherent. So, however you explain it or apply it is OK. Beauty. Simplicity. Law. RUReady2Testify 21:51, 26 July 2007 (UTC)

RU, I would like to help you out here, but I don't understand what you're getting at. It's not an issue of what anyone is "allowed" to cite. It's simply a fact that the Wikipedia environment is one of merciless editing. Some newcomers don't understand that. They're more used to Internet discussion boards where they can say whatever they want and their comments may be attacked but won't be edited. I cited the policy to try to explain how Wikipedia is different, not to win any argument. JamesMLane t c 08:17, 27 July

2007 (UTC)

What I am getting at is that it appears from my observations that the "your work will be mercilessly edited" rule is used as a reason to revert someone else's editing of your the rule-citer's work. Example Joe writes text. Jane mercilessly edits Joe's text. Joe, offended, reverts Jane's edits back to Joe's original text. Jane, seeing all of her work deleted, objects. Joe replies, "Hey, if you can't take the heat, stay out of the Kitchen," and condescendingly "points out" to Jane, who is quite familiar with the rules, btw, "Welcome to Wikipedia, please read the rules, particularly the one that says your work will be mercilessly edited" preempting Jane's justification of her work by such citation, which she thought was implicit anyway. There you have it. How to cite the mercilessly edited rule. RUReady2Testify 16:45, 27 July 2007 (UTC)

RUReady2Testify 21:38, 26 July 2007 (UTC) extended essay deleted per WP:TALK and WP:NPA

TedFrank has a point here. The talk page is not a chat room, and the talk page for an article is not meant to question guiding policies of the site. I've looked over your commentary and cannot find one concrete suggestion for improving the article. Please see WP:TALK. Cool Hand Luke 02:50, 27 July 2007 (UTC)

RU, take it to the talk page of WP:NPOV, please. And also review WP:NPA. THF 06:14, 27 July 2007 (UTC)

This is not an "extended essay" it is a few paragraphs inviting discussion on what this article should be about, particularly whether the article can or should have a NPOV.

Deletion of this topic and or this contribution to the discussion page is politically motivated and therefore violates the NPOV rule.

Deletion of this without discussion without even readiong it (I strongly suspect) and especially without allowing me any input is intended to disrupt the goal of wikipedia, to provide clear accurate and unbiased information, also violates the vandalism rule.

This discussion might also be appropriate elsewhere--but only by analogy--but it is directly related to the entry here--tort reform.

My assertion is that the article on tort reform is (1) factually wrong (2) it is factually wrong because it is biased.

To delete this assertion violates various rules of Wikipedia, particularly those against bias and vandalism.

Preliminary note: I just had to undo a vandalism by user Ted Frank (deleting the discussion below). "Ted Frank" attempted to justify his vandalism by asserting that my addition to the discussion here is not appropriate because this is a place for discussing how to make the article on tort reform better not a place for discussing tort reform. To the extent that "Ted Frank" deludes himself or attempts to deceive others that the two are separable his vandalism will succeed. How can you discuss making an article on tort reform better if you can't discuss the (by no means universally accepted) concept itself. Such brute-force attempts to enforce the neutrality rules or even as here rules for discussion are nothing short of vandalism--an illegitimate alteration of the text (even or perhaps more so in the talk page) unilaterally effected to the end purpose of (in this case) suppression of a particluar fact (what "tort reform" actually is).

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) The first sentence of this entry reads: The terminology tort reform describes a change in United States civil law system to improve litigation efficiency or reduce litigation's adverse effects on the economy.

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) "Wikipedia" (i.e., whatever individuals have a stake in the article) could attempt to be neutral and change it to: The term "tort reform" refers to the hotly debated notion that tort suits (lawsuits, such as a class actions, seeking money damages for civil, as opposed to criminal, wrongs) and the money judgments they result in, are out of control, causing harm to the economy, and need to be reined in.

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) But the term "tort reform" is a great example of Orwellian Newspeak. The "trial lawyers" are somehow responsible for huge sums of money awarded to people harmed by those who are not only able to pay without blinking, but could have easily afforded, but for their own greed, to prevent the harm in the first place, had they not adopted a decision formula that accounts for the (highly predictable) variables of the cost of prevention before the harm orrurs versus the cost of paying judgments for wrongful death, disfigurment, maiming, etc., after the harm. In nearly every case where there has been a large money judgment against a defendant, there has also been a pre-marketing-pre-harm-pre-lawsuit decision made by that defendant that it (usually a corporation) can afford to pay the judgment. "Tort reform" is just gravy. Any time you as a businessman can reduce they expenses that you expect to have and you already know you have budgeted for you make out ahead. It is guaranteed profit because it is a single component cost.(fire the union workers by moving to India or moving the factory from Detroit to Kentucky and hiring "poor Southerners" and later "undocumented immigrants" or charging market rates for government-backed student loans, and so on). Isn't there a lawyer on each side in a trial? Which one is the "trial lawyer" (the bad guy)?

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) Why is it the trial lawyer's fault that when a client walks in with a problem and he files a lawsuit and the judge doesn't send him to jail for suing over things that aren't legal claims, and then the judge lets the jury hear the case and then the judge instructs the jury on the law, and the jury renders a verdict and assess money damages and then the judge who cvan either raise the amount of money or lower it before entering a judgement, enters a judgment that the defendant must pay $X, it is somehow the lawyer's fault?

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) Tort reform is the movement to limit the end result of tort lawsuits, that is, it a the movement pushed by large corporations to limit how much they have to pay as a result of a lawsuit claiming that they harmed someone (this is not controversial: nobody else cares because anyone else who loses a big suit would simple not pay and that's the end of it).

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) Tort reform does not refer to any attempts by large corporations (the only possible defendants with anything to lose) to limit their liability by improving their products to make them less dangerous or harmful to the public. Obviously if a baby seat never killed any babies, there would be no parents of dead babies suing the maker of the baby seat. Or whatever.

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) Tort reform posits that the economy is harmed by large money judgments against lawbreakers in the same way that the economy is harmed by other laws, like speeding. "If I can break the law and not have to pay such huge portions of my profits to those whose arms and legs I have cut off while making my product, I will have more money and that is good for the economy," say the corporations. If I can speed to work and not have to pay any tickets for the pedestrians I kill along the way, I will get to work more and I will have more money," I say.

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) The hot debate in tort reform is over whether (1) the economy is actually better off if more people are allowed to keep their arms and legs and lives (by discouraging reckless or negligent (not on purpose) arm-and-leg-cutting and killing with fines and requiring the negligent to pay for the arms and legs they already cut off), and (2) whether--even if the economy is better off with more armless and legless and dead people but richer companies--whether it should still be wrong to go arount cutting off arms and legs and killing people just because you want a little more money (the money they save is almost alwys extremely small (to save $1.00 per unit, some companies and their insurance companies will allow X number of deaths caused by their product).

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) This tort reform debate is extremely hot in the sense that although there are no reasonable people in favor of tort reform, it is the position pushed forward by the owners of Conngress and the courts. Still, those owners of government do not get to vote in this country (USA), and they must convince the voters to vote for the political candidates that will do their bidding--such candidates are nearly always a member of one or the other of the two major political parties (about half from one party, half from the other). So the hot debate is not so much a partisan debate along "party lines" (note you will not be able to see such lines ona cloudy day, so don't bother to look for them), as it is along the lines of which elected or appointed officials are willing to come out of the closet as kept mistresses, and openly do the bidding of their masters. It's a true nail-biter. The "debate" has been keeping "voters" on the edge of their seats for years, even though numerous laws have been passed that could count as tort reform, if the counters were honest. For example, the 1995 Securities Litigation Reform Act, and numerous court decisisons (there's one in front of the Supremem Court now--wonder if the little guy will win?) which limits the ability of defrauded mom and pop investors in teh stock market to sue fraudulent companies--many of which are operating under the guise of a Fortune 500 firm, as Enron did.

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) Tort reform is everywhere like love in the 60s. It is the wave of the future. Someday all of us will wear ankle bracelets and be glad we are not behind bars thanks only to tort reform.

(This paragraph is about the article on tort reform and how to make it better, and asking for collective discussion. Please do not delete from discussion on tort reform article. RUReady2Testify 16:37, 27 July 2007 (UTC)) So, in conclusion, it is plain that an objective or neutral POV on tort reform will be difficut to achieve. Nonetheless, I applaud those who tried to square the circle and turn lead into gold. However, anyone claiming to be attempting to achieve neutrality on tort reform is by their own admission working for the devil. RUReady2Testify 21:38, 26 July 2007 (UTC)

Added again with additional explanation. RUReady2Testify 16:29, 27 July 2007 (UTC)