Lakoff on "Tort Reform"
I couldn't agree more. Trial lawyers, are you listening?
George Lakoff Discusses "Tort Reform"
Restrictions on tort lawsuits and other kinds of lawsuits are issues near and dear to conservative hearts. The following interview with Rockridge Senior Fellow, George Lakoff, explores various aspects of “tort reform,” including the manner in which conservatives have framed the discussion, the problem with the progressive response so far, and ideas for more effective progressive framing of the debate.
Q: What are some of those frames?
Lakoff: To begin, the very phrase “tort reform” evokes a frame. In two words, it communicates that something is the matter with the tort system, which requires reform or correction. In this respect, the phrase is similar to another effective conservative phrase, “tax relief.” Once the public accepts these phrases, they have bought into the idea that they need to be relieved from the affliction of taxes and that they need to fix the tort system. The debate then turns to the question of how and how much. At that point, progressives can’t win the debate; the best we can do is limit the losses.
[...]
Q: Have consumer advocates, trial lawyers, and other progressives had much success responding to these conservative frames?
Lakoff: No. Despite spending great sums of money, they have had very little success, as we’ve seen with all the new tort reform legislation at both the state and federal levels. And more legislation is in the pipeline.
Q: To what do you attribute this lack of success?
Lakoff: The primary reason is that the progressive groups you mention have fought the fight on the “tort reformers’” turf, that is they have merely offered facts to rebut the conservatives’ frames, leaving the frames intact. They’ve tried to show that lawsuits aren’t frivolous, that lawyers aren’t greedy, that plaintiffs are genuinely aggrieved. It’s like Nixon saying, “I am not a crook,” which made everyone think of Nixon as a crook. As I said before, once you go down that road you’ve already lost the fight. It’s only a question of how badly.
Q: What’s the alternative?
Lakoff: First, we have to recognize that when the right wing says “tort reform,” what they really mean is destruction of the civil justice system. Just what is the civil justice system? Most people have a frame for the criminal justice system, but not the for the civil justice system. Since a corporation isn't literally a person, it can't be put in jail for performing harmful or murderous acts. When corporations engage in practices that harm or kill people, the only way through the legal system to punish them and give them an incentive to stop their harmful practices is to sue them and make them pay.
In the civil justice system, the trial is in the form of a lawsuit. The victims of harm are the plaintiffs and the defendants are typically corporations. The roles of police and prosecutors are played by the plaintiffs' lawyers. The victims come to lawyers (the only police). The lawyers search for evidence of harmful corporate behavior. The plaintiffs' lawyers act as prosecutors. The punishments are of two kinds: compensatory damages (compensating victims for harm); and punitive damages (punishing corporations that do harm).
Since a billion-dollar corporation cannot be imprisoned, only very large compensatory and punitive damages can provide sufficient disincentives from doing harm. Given the current climate of less and less regulation of business and increasingly lax or underfunded enforcement of what regulations remain, the civil justice system is rapidly becoming society’s only line of defense. Without it, the unscrupulous can and will run roughshod over the American people, maiming people, making them seriously ill, and sometimes killing them — all in the name of profit. Limiting profits is the only deterrence in many cases. Bear in mind that conservative voters believe in deterrence. It’s a basis for their support of the death penalty, for example. Conservatives also believe in the concept of being responsible and accountable. It relates to their strict father family model for society and government that I’ve written about.
George Lakoff Discusses "Tort Reform"
Restrictions on tort lawsuits and other kinds of lawsuits are issues near and dear to conservative hearts. The following interview with Rockridge Senior Fellow, George Lakoff, explores various aspects of “tort reform,” including the manner in which conservatives have framed the discussion, the problem with the progressive response so far, and ideas for more effective progressive framing of the debate.
Q: What are some of those frames?
Lakoff: To begin, the very phrase “tort reform” evokes a frame. In two words, it communicates that something is the matter with the tort system, which requires reform or correction. In this respect, the phrase is similar to another effective conservative phrase, “tax relief.” Once the public accepts these phrases, they have bought into the idea that they need to be relieved from the affliction of taxes and that they need to fix the tort system. The debate then turns to the question of how and how much. At that point, progressives can’t win the debate; the best we can do is limit the losses.
[...]
Q: Have consumer advocates, trial lawyers, and other progressives had much success responding to these conservative frames?
Lakoff: No. Despite spending great sums of money, they have had very little success, as we’ve seen with all the new tort reform legislation at both the state and federal levels. And more legislation is in the pipeline.
Q: To what do you attribute this lack of success?
Lakoff: The primary reason is that the progressive groups you mention have fought the fight on the “tort reformers’” turf, that is they have merely offered facts to rebut the conservatives’ frames, leaving the frames intact. They’ve tried to show that lawsuits aren’t frivolous, that lawyers aren’t greedy, that plaintiffs are genuinely aggrieved. It’s like Nixon saying, “I am not a crook,” which made everyone think of Nixon as a crook. As I said before, once you go down that road you’ve already lost the fight. It’s only a question of how badly.
Q: What’s the alternative?
Lakoff: First, we have to recognize that when the right wing says “tort reform,” what they really mean is destruction of the civil justice system. Just what is the civil justice system? Most people have a frame for the criminal justice system, but not the for the civil justice system. Since a corporation isn't literally a person, it can't be put in jail for performing harmful or murderous acts. When corporations engage in practices that harm or kill people, the only way through the legal system to punish them and give them an incentive to stop their harmful practices is to sue them and make them pay.
In the civil justice system, the trial is in the form of a lawsuit. The victims of harm are the plaintiffs and the defendants are typically corporations. The roles of police and prosecutors are played by the plaintiffs' lawyers. The victims come to lawyers (the only police). The lawyers search for evidence of harmful corporate behavior. The plaintiffs' lawyers act as prosecutors. The punishments are of two kinds: compensatory damages (compensating victims for harm); and punitive damages (punishing corporations that do harm).
Since a billion-dollar corporation cannot be imprisoned, only very large compensatory and punitive damages can provide sufficient disincentives from doing harm. Given the current climate of less and less regulation of business and increasingly lax or underfunded enforcement of what regulations remain, the civil justice system is rapidly becoming society’s only line of defense. Without it, the unscrupulous can and will run roughshod over the American people, maiming people, making them seriously ill, and sometimes killing them — all in the name of profit. Limiting profits is the only deterrence in many cases. Bear in mind that conservative voters believe in deterrence. It’s a basis for their support of the death penalty, for example. Conservatives also believe in the concept of being responsible and accountable. It relates to their strict father family model for society and government that I’ve written about.
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