The free market at work in the SC General Assembly

A couple of weeks ago, I appeared on Cynthia Hardy’s TV show to talk about tort reform. Because I was asked. Which just goes to show, if asked, I will talk about pretty much anything. Seriously, though… I forgot to mention it to y’all at the time, but as far as my comments are concerned, you didn’t miss much. My position on the issue is what it’s been for years — I’m not convinced on caps, and I think punitive damages (that is to say, those damages above and beyond what it takes to make the winning plaintiff whole) should go to the state — just like other punitive fines for criminal offenses. Basically, you would actually punish people who might otherwise write off lesser damages as the cost of doing business, but you remove the incentive for individuals and their attorneys to use the tort system as some sort of lottery.

For more, you can look at The State‘s editorial from earlier this year, and Cindi’s column from last year. I generally agree.

Beyond that, I’ve sort of lost track of the debate this year. I do that sometimes when neither side is pushing the position I would go for, and I have other things to do.

Seems that, according to Wesley Donehue (who works for the Senate Republicans) things are coming to a head today:

Wesley Donehue
Watching the trial lawyers in the SC Senate block tort reform.

36 minutes ago via Twitter for iPhone

Hmmm. Well, I don’t suppose anyone can argue with that. I mean, it’s the free market at work, with each individual selfishly protecting his own economic interests. The Tea Party types and Sanfordistas should be thrilled. And the trial lawyers should certainly be happy.

But come to think of it, not too great for the Chamber of Commerce, or the legislative leadership. Or for the rest of us. But then, unless the legislation has changed considerably since the last time I looked at it, I’m not sure our interests would have been all that well served either way…

8 thoughts on “The free market at work in the SC General Assembly

  1. Doug Ross

    Hold onto your hat, Brad. I agree with you. A cap set at a percentage of revenue is a reasonable incentive for companies large and small to behave ethically. And giving the excess over a certain amount to the state would be fine with me also (except I know it will not be spent wisely either). Rich trial lawyers aren’t aren’t much higher on the ethical ladder than corrupt politicians (and many times they are both).

    But I’d be interested to know what de facto Democratic Party Leader Vincent Sheheen thinks.

  2. Brad

    I rejoice at our agreement, Doug. And I don’t know where Vincent is on it. I don’t know where anybody is on it, yet — all I know is what Wesley said, which is pretty bare bones. I mean, I’m not even sure which bill was being voted on, or in what way it was being “blocked.”

    I’ll watch the coverage of this, and if it doesn’t tell us, I’ll try to find out. Remind me if I forget.

  3. bud

    How about a limited cap on punitive damages but substantially higher that what most bills I’ve seen offer. Set up a fund for medical insurance to help the poor (since we seem determined to stick with this market system for that). Perhaps allow for some small payments to the victims above making them whole. All in all I can see a need for some reform. On this one I’m about in the middle between the two extremes.

  4. Doug Ross

    And look at that, I agree with bud also. Using above-the-cap awards to fund medical care would be fine – except then you open up the can of worms where the program EXPECTS a certain level of awards in order to fund the care. A better way would be to set it up so that the only amount that could be spent in one year was what was taken in the year before. Spend it all but start at zero every year.

    We also need to disallow secret settlements where people are paid off to prevent the truth about bad behavior from coming out…

  5. Kathryn Fenner (D- SC)

    @ Doug- You’re right–no secret settlements. Part of the justification for punitive damages is the deterrence effect (after the Pinto cases, car companies took the enhanced liability into account when they did their cost/benefit analyses of safety measures). You can’t deter something with damages no one knows about!

    All trial lawyers aren’t rich, and they get nothing if they don’t win, so in order to make legal services available to those with cases but no money, you have to let the lawyers make it up on the cases they win.

    Or fund adequate legal services for civil cases.

    Ha ha ha

  6. Brad

    Oh, by the way, folks, after Wesley’s overly dramatic complaining about the trial lawyers, later in the evening he put out this release:

    “Tort reform bill receives second reading in Senate

    “Business community celebrates huge victory

    “Columbia, SC – May 31, 2011 – After extensive debate and a process held up by trial lawyers for months, common sense and South Carolina businesses prevailed on Tuesday as the Senate passed a comprehensive tort reform bill, 39-0. It marks a success for Senate Republicans and South Carolina’s business community, for whom tort reform has been a top priority in recent years. Gov. Nikki Haley has stated that the passage of tort reform is a goal for her administration, recently appearing at a tea party news conference and rallying supporters to get the Senate to pass the bill….”

    Anyone seeing anything wrong with the way this struggle is being portrayed? Yeah. 39-0. And yet, the narrative goes, it just BARELY passed over the determined resistance of those wicked trial lawyers.


  7. Brad

    And yes, I understand that in the SC Senate, things do tend to pass unanimously, and that the CHALLENGE is getting to a vote. But still, it seems kind of petulant to moan about those awful trial lawyers when you just got a 39-0 vote.

  8. bud

    The secret settlements goes against my view that events should unfold in public. Time to get rid of the secret settlements. No public good can come of that.

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