Tort reform 侵权法改革 Closing the lottery 不能再靠碰运气 The debate over tort reform generates exaggerated claims, but also a few good ideas 改革催生了大量索赔，但也带来一些好观念
IN HIS floundering campaign for president, Rick Perry has at least brought one topic into prominence: tort reform. In June the governor of Texas signed a loser pays tort law, intended to discourage slight or frivolous lawsuits by making losers pay the winners’ legal costs. Conservatives are eager to support it. The right has maintained for decades that America’s legal culture smothers small businesses, doctors and innovators.
Too bad, then, that the Texas law is timid. Loser pays is the norm in many countries, including England, Canada and Germany. But there, loser pays is the rule in most torts. The Texas bill awards legal costs only for suits that have no basis in law or in fact and are dismissed before any evidence is gathered. Most competent lawyers can write a complaint that clears this bar. Even the Texas trial-lawyers’ association eventually endorsed Mr Perry’s law.
Only one other state, Alaska, has loser-pays, and only for a portion of fees. More intriguingly, Florida imposed loser-pays in 1980 for medical-malpractice cases. The number of claims dropped, but the average award rose, suggesting that more high-merit cases got their day in court while low-merit filings were deterred or settled for less. But many losing plaintiffs were too poor to pay the winners’ costs, while in one case a losing defendant had to pay millions for the plaintiff’s legal fees. Even doctors supported the law’s repeal in 1985.
Marie Gryphon of the Manhattan Institute, a centre-right think-tank, who is author of a loser-pays proposal, says that Texas got much less than half a loaf, and that Florida was spooked too quickly. She argues that loser-pays countries need legal insurance, which can be bought (for example) in England for just £100-200 ($150-300) after an alleged loss, but before a suit is filed. Lawyers can advance the premiums and add them to their bills. In other countries, such as Germany, many households carry standing legal insurance with a small monthly premium. Ms Gryphon argues that in such a mature loser-pays market more small-value but high-merit cases would be brought, while both small nuisance suits and big lottery suits would be less attractive to lawyers.
Loser-pays has yet to be properly tried in America. Another idea, however, is in place in many states: capping damages. In the popular imagination runaway juries routinely impose huge non-economic damages (to punish a defendant or make up for a plaintiff’s suffering). In practice, headline-grabbing awards are often reduced by judges: the notorious $2.7m in punitive damages for a woman who spilled scalding McDonald’s coffee on her lap in 1994 ended up at $480,000.