Book Reviews : Who’s to Blame for High Liability Cost?

Liability: The Legal Revolution and Its Consequences by Peter W. Huber (Basic Books: $19.95; 272 pages)

Here is the latest volley in the war of words over the American tort system, our much-maligned method of compensating the victims of accidental injury. The book is a much worthier effort than what you’re seeing on television nowadays in the form of nearly fraudulent 30-second spots for the rival tort reform initiatives on the November ballot. But the shrillness and the sheer passion that characterize the television spots can also be detected in Huber’s far more substantial study. And, like the TV spots, lawyers (and, interestingly, judges) emerge as the nastiest of bogeymen.

Indeed, “Liability” is not nearly as sober as its title would suggest. Huber fulminates against tort law, which he characterizes as a hidden “liability tax” that burdens business and consumers without fairly compensating the victims of accidental injury. “It is collected and disbursed through litigation. The courts alone decide just who will pay, how much, and on what timetable,” Huber writes. “And although the tax is ostensibly collected for the public benefit, lawyers and other middlemen pocket more than half the take.”

Huber, a former Supreme Court clerk who is trained in both the law and mechanical engineering, is hardly simplistic in his treatment of tort law, which is more than we can say about most of the debate over legal reform. He makes useful and interesting observations about the intellectual and historical underpinnings of the law, which has taken the whole question of responsibility for accidental injury out of the law of contracts (or, in some instances, government regulation) and into the “free-for-all” of the personal injury litigation.

But Huber’s overheated rhetoric is so full of sarcasm and outright rancor that “Liability” has the tone of a propaganda tract rather than a considered attempt to persuade. For example, the lawyers, law professors and judges who renovated the law of torts in the last generation or so--including Roger Traynor, the venerated former Chief Justice of the California Supreme Court--are dubbed, with bitter irony, “the Founders.”

Remarkably Naive

“They were remarkably naive and optimistic about the legal system in particular and the world in general, and much further from omniscience than they so earnestly believed,” Huber writes. He characterizes the proliferation of liability theories as “their tort law charity barbecue,” and--at one point--he likens “the Founders” to “a pack of chimpanzees (welcoming) a python, with much howling and chest pounding and waving of arms and throwing of rocks.”

Still, I was impressed by Huber’s attention to the real workings of the tort system, and his willingness to explain and explore some of the more complex and elusive legal concepts that play such a crucial role in the courts--joint and several liability, statutes of limitations, burdens of proof, causality. His treatment of these subjects is clear and often colorful, although wholly lacking in scholarly detachment. But Huber undermines his own credibility when he blames virtually all of the profound institutional changes in tort law on a sinister conspiracy of lawyers and judges, whom he dubs “the new tort brotherhood” or “the new tort acolytes” or, of course, “the Founders.”

Offers an Alternative

Of course, Huber is a missionary, not a scholar, and he believes that he knows a better way to compensate the victims of accidental injury--the allocation of risk by contract, including a “neo-contractual” system of “first-party” insurance by which each of us is insured against our own injuries. Huber’s orderly mind and conservative temperament incline him toward the intellectual elegance of contract law, and away from the hurly-burly and unbridled aggression of personal injury litigation.

“Contract, the mirror image of tort, is the law of cooperation rather than of mutual consumption,” he rhapsodizes. “Tort law magnifies conflict to the point where it swamps the benefits of cooperation. But in the longer run, as society adjusts to a legal regime that promotes division, everyone but the lawyers lose. We are all in the soup together. Only the lawyers are here to dine.”