ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 26-28.


IN DEFENSE OF TORT LAW by Thomas H. Koenig and Michael L. Rustad. New York: New York University Press, 2001. 344 pp. Cloth $45.00. ISBN: 0-8147-4757-4.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound.

Sociology professor Thomas Koenig and law professor Michael Rustad have expanded their passionate but data-laden studies of punitive damages and civil litigation into the aptly entitled IN DEFENSE OF TORT LAW. A compendium of defenses against decades of tort reform misinformation and disinformation, this monograph will best serve undergraduates as a library reference. To use this volume in undergraduate or graduate courses, instructors would have to supplement it with readings to make the case for tort reform more effectively, more accurately, and less forensically than the authors have elected to do. However, its price might make its assignment on a reading list prohibitively expensive.

Instructors should refer students to this book only if they are certain that students can handle a brief. Students who learn that, "tort reformers do not take an evenhanded approach in analyzing [the] strengths and shortcomings" (p. 4) of the tort system may not see that the authors took no evenhanded approach in defense of tort law. Perhaps the most telling classroom use of this book would be as a case-study of how adversarial settings bring out arguments cogent and cunning on every side. Koenig and Rustad are most cogent in their criticisms of popularized arguments for tort reform, but in advancing the case for current law and policy, the authors sometimes imitate tort reformers' reductionist arguments, anecdotes, and sophisms.

The authors have organized their book well. Chapter One reviewed in 58 pages regimes of "intentional torts" (1200-1825 in England then the United States), "negligent torts" (1825-1944 in the United States), "progressive torts" (1945-1980), and "retrenchment" (1981-present). The authors have summarized each era in a timeline and highlighted developments to contextualize the overall defense and succeeding chapters. Chapter Two parades improvements wrought by tort law and litigation, especially improvements in the lives of ordinary people beset by powers unrestrained by other institutions. Chapters Three through Five focus on triumphs of ordinary folk in "interstitial legislation" (p. 207) concerning gendered inequities, patients' rights, and product safety. From their review of the upward march of tort law, the authors have extrapolated in their final chapter how patent and latent benefits of tort litigation might continue to be vital in the Twenty-First Century if retrenchments are defeated. Overall, Koenig and Rustad defend tort law as a major remedy for inequalities and inequities rampant in other venues of self-government, inequalities and inequities that tort reformers find less troublesome than ready availability of civil redress.

In crafting each part of their defense, Koenig and Rustad have made important


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steps and missteps. In Chapter One, the authors make the point that tort law has always followed commercial and political exigencies, but they create an overview more strategic than synthetic, in part and ironically because their survey was too comprehensive. They succeed in showing how past and current tort regimes have resembled the interests of privileged groups, a valuable insight especially for undergraduates. Their success will raise, for many readers, questions about how current retrenchments might be defeated if tort reforms tend to favor the privileged and if "progressive torts" called forth retrenchments. If the primary, and often latent, social good of tort law is to enable underdogs to get something resembling justice that they could not get elsewhere, why expect bigger dogs to desist from fighting that justice on more advantageous terrain in the name of profits, privileges, and alternative conceptions of justice?

Moreover, if legislators and office-seekers have been too gullible in accepting tort reform arguments to reverse progressive developments (and the authors deftly argue that politicos have), they nonetheless have responded to at least some genuine problems. Readers will encounter little indication that such is the case in Chapter Two, "The Human Face of Tort Law." Tort reformers have often slandered and stymied innocent victims but have done so on behalf of other victims, not all of them corporate malefactors or other elites. Counting benefits of progressive tort regimes in states and nation while discounting costs of the civil law system is not likely to motivate even sympathetic readers to pursue policies to counter retrenchment, so Koenig and Rustad's defense may persuade readers that tort reformers have been guilty of false and fallacious argumentation but may not convince many readers that Koenig or Rustad have behaved much better than those whom they
critique. If so, the best that the authors have accomplished is to hang the jury. Skepticism and inertia favor the side currently on the offensive, so this defense amounts to a temporizing action at best.

The chapters that address gender justice, patients' rights, and product safety prove as partial as Chapter Two. Each effectively raises overlooked issues. Chapter Three shows how differences and disadvantages related to sex condition civil law in general and torts in particular. Chapter Four demystifies myths about medical malpractice. Chapter Five stretches a few guidelines for manufacturing safe and honest products into Ten Commandments for avoiding products-liability suits and judgments. However, each chapter overlooks issues that tort reformers must and should raise. Chapter Three celebrates compensation of victims of silicone implants without acknowledging the judgments of epidemiologists and judges that such compensation hinged on poor science or no science. In Chapter Four the authors cite the Harvard Study to show that perhaps one out of one hundred victims of documented malpractice sued (pp. 296-97), but they do not admit that the same study revealed three or four unwarranted medical malpractice suits for every one the study's experts found to be warranted. The authors supplant reformers'
horror stories about frivolous litigation and outrageous results with their Decalogue (pp. 184-204), but they should have admitted alarming exceptions to each of their Ten Commandments.

If each of the central chapters--Two through Five--fails to consider cases from multiple perspectives, the authors did demolish many of the canards of tort reform publicists. The authors have no room for systematic case studies when debunking

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advertising and propaganda but transcended reformers' anecdotes and show that the case method?which some tort reformers have fatuously equated to anecdotes?improve on telling tales. This accomplishment should not be underestimated. Once undergraduates and other readers learn that they have been bamboozled by legends or legerdemain, corporate Goliaths may find it harder to play David before houses of legislators or panels of jurors. Having documented harrowing omissions and commissions that constitute true horror stories?that is, stories that truly horrify and have the additional virtue of being true?the authors have provided readers prophylaxis against reformers' blowsy rhetoric as well as illustrations of the good of tort law.

In parrying tort reform and demonstrating the continuing services of tort law, Professors Koenig and Rustad indulge in blowsy rhetoric for which they rightly excoriated tort reformers. Their own fallacies and fictions both leave Koenig and Rustad liable to the criticisms that they have leveled against others and latently exonerate tort reformers, who are entitled to proceed with little of evidence or documentation of academic studies.

For instance, the authors informed readers that the supreme courts of Illinois and Ohio have overturned state tort reform statutes after more accurate accounts of "the McDonald's Coffee Lady" case became available (p. 6). However, their prose will lead unwary readers to conclude that straightening out that notorious anecdote led the courts' majorities to the conclusion that the statutes had to fall, a dazzling example of the post hoc ergo propter hoc fallacy. Seventy-one pages later, the authors clarify the constitutional bases on which each court proceeded.

Instructors will likely differ as to which is worse: for insurance companies and public relations outfits to offer utterly undocumented advertisements or for academics to debunk such advertisements with citation to one website (p. 75, n 38). What seems less debatable is that casual reliance on the World Wide Web is widespread enough among students. The authors should not have exemplified or encouraged such feeble documentation.

Even instructors who concur with the claim that, "Tort reform is a code phrase for one-sided, liability limiting statutes that favor corporate interests" (p. 77) owe it to their students to show students why so many Americans fear frivolous lawsuits and root for tort reforms. Tort reform may have protection or prosecution of corporate interests as a major latent function, but that is scarcely its only purpose. What patent functions or proclaimed motivations "sell" tort reform(s) to voters or representatives? Koenig and Rustad are certainly within their rights to expose unacknowledged motives behind tort reform as well as unrecognized benefits from tort law, but to scant the acknowledged motives of tort reformers as well as the recognized costs of tort law is to construct a brief. As with casual citations to the web, so with one-sided argumentation--most students need no more instruction in the caricature of opponents.

In sum, IN DEFENSE OF TORT LAW is a reasonably safe read for students who are up to speed but should not be opened by students who are inexperienced scholars.

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Copyright 2002 by the author, William Haltom.