How Much Do Conservative Tort Tales Matter?

The Business of State Supreme Courts, Revisited

“…Importantly, their data stop just as the revolutions in defendants' rights and tort doctrine are maturing. The first of these revolutions was driven by external sources (i.e., the U.S. Supreme Court), whereas the second reflected broader changes in social development (see Friedman 1985; Kagan 2006:715–17). In the latest periods examined by Kagan and his colleagues, criminal cases comprised 18 percent of the state supreme court dockets they examined, and torts comprised 22 percent.…”

“Tort Tales” and TV Judges: Amplifying, Modifying, or Countering the Antitort Narrative?

“…According to Haltom and McCann, anecdotes like this one are worth noting because they

convey serious meaning and exercise pervasive interpretive power in modern American society … [and] are but one dimension in a larger assault on rights entitlements, legal challenges to hierarchy, and democratic appeals to courts that have fueled the culture wars in American society over the past several decades. (: 6)

In response to Haltom and McCann's argument that tort tales have allowed conservative tort reformers to dominate the social construction of tort law, Robert Kagan () argues that changes in American tort law have been possible because particular aspects of the tort system had a negative reputation with the American public prior to and independent of tort reformers' efforts to circulate tort tales. Kagan cites such unpopular aspects as the “shift away from contributory negligence defenses and toward liability for more remote, corporate sources of harm; the elasticity of tort damage awards and settlements that go well beyond out‐of‐pocket losses; the frequency of recovery for weak claims; and frequent padding of claims; the system's failure to compensate many deserving people” (Kagan : 723).…”

“…(: 6)In response to Haltom and McCann's argument that tort tales have allowed conservative tort reformers to dominate the social construction of tort law, Robert Kagan () argues that changes in American tort law have been possible because particular aspects of the tort system had a negative reputation with the American public prior to and independent of tort reformers' efforts to circulate tort tales. Kagan cites such unpopular aspects as the “shift away from contributory negligence defenses and toward liability for more remote, corporate sources of harm; the elasticity of tort damage awards and settlements that go well beyond out‐of‐pocket losses; the frequency of recovery for weak claims; and frequent padding of claims; the system's failure to compensate many deserving people” (Kagan : 723). He then surveys the tort reforms that have been enacted since the mid‐1980s and finds that they have been minimal—“nibbling at the edges” of the system (Kagan : 723).…”

“…Kagan cites such unpopular aspects as the “shift away from contributory negligence defenses and toward liability for more remote, corporate sources of harm; the elasticity of tort damage awards and settlements that go well beyond out‐of‐pocket losses; the frequency of recovery for weak claims; and frequent padding of claims; the system's failure to compensate many deserving people” (Kagan : 723). He then surveys the tort reforms that have been enacted since the mid‐1980s and finds that they have been minimal—“nibbling at the edges” of the system (Kagan : 723). Kagan argues that successful tort reform has been limited because American legal culture actually supports “the core elements of the American tort regime” (Kagan : 712; emphasis in original), values identified by Lawrence Friedman () as part of a system of “total justice,” in which people expect government and courts to “prevent serious accidents, illnesses, and other sources of harm and to provide compensation to the injured” by holding corporations and businesses accountable for their actions (Kagan : 728).…”

“…In Distorting the Law: Politics, Media, and the Litigation Crisis (), William Haltom and Michael McCann argue that media attention to “tort tales” has bolstered conservative tort reform campaigns. In response, Robert Kagan () raises the question of how pervasive the anti–tort law sentiment of tort tales is in American legal culture. This article joins the debate about the pervasiveness of these attitudes by examining whether, and to what extent, antitort or antilitigation sentiment is present in the narratives about law offered to the public by reality‐based television judge shows.…”