Mr. Perry made passage of a modified version of the English loser-pays rule a top priority during this year's biennial session of the Texas Legislature. After emphasizing the need for such tort reform during his State of the State address in February, Mr. Perry made loser pays the law of the land in Texas by signing H.B. 274 in May.
This is not the first time Mr. Perry has tackled necessary pro-growth tort reform. The implementation of loser pays in Texas comes on the heels of Mr. Perry's landmark 2003 medical liability reforms, which established a burden of proof for punitive damages similar to criminal law by requiring a unanimous jury verdict and capped noneconomic damages at $750,000. A 2008 report by the Perryman Group found those reforms to be directly responsible for an immediate first-year influx of almost 2,000 new physicians into Texas as well as a 70 percent drop in lawsuits against hospitals. The Texas Public Policy Foundation estimates that the state has netted more than 25,000 doctors since. Following the 2003 reforms, Texas doctors saw medical liability insurance rates decline by an average of more than 21 percent, with some seeing nearly a 50 percent rate cut. Those savings enabled hospitals to expand charity care by 24 percent. Three years after these lawsuit reforms, Texas became the first state ever to be removed from the American Medical Association's list of states experiencing a liability crisis. And 25,000 Trial Lawyers moved to California
#1
Texas became the first state ever to be removed from the American Medical Associations list of states experiencing a liability crisis.
The other side of the coin is - has Texas implemented a robust medical review board to insure that truly incompetent and reckless practitioners have their licenses removed? By robust, I mean effective and prompt with integrity that isn't a good old boy rubber stamp protecting their own type organization. The much abused tort approach has been thriving because of the perception that there was no other means of redress when wrong was done.
#2
I'd have to see the legislation, but it seems a bit simplistic and knee-jerk sensationalistic. Does it apply to all cases? If not, why not? Most cases are are not even civil cases; so, for example, why not make the losing criminal pay for the court costs? [snark]Can't imagine the government ever abusing that kind of system.[/snark] Most court cases are not malpractice, negligence, or even motor vehicle personal injury cases.
If there's a custody dispute, you're going to make the loser (who just lost child custody or visitation, e.g.) pay? Those kind of practices applied to domestic relations, criminal law, and other fundamental areas start getting into some potentially very serious constitutional issues regarding basic civil rights and access to the courts . . .
For the main trial courts of one state, here's how the workload broke down for a recent year:
CIVIL BREAKDOWN
4% Breach of Contract
<1% Breach of Warranty
<1% County Court Counter Claim
<1% Confirmation of Arbitration Award
1% County Court of Municipal Appeal
<1% Declaratory Judgment
<1% Determination of Interests
39% Distraint Warrant
1% Foreclosure (not Deed of Trust)
1% Forcible Entry and Detainer
<1% Foreign Judgment
<1% Fraud
<1% Goods Sold and Delivered
1% Injunctive Relief
<1% Landlord Tenant
<1% Lien
<1% Malpractice
<1% Mechanics Lien
6% Money
<1% Motion to Approve Transfer of Structured Settlement
<1% Name Change
1% Negligence
1% Note
1% Other
<1% Out of State Subpoena
1% Personal Injury
3% Personal Injury - Motor Vehicle
3% Petition to Seal Criminal Record
<1% Petition to Seal Criminal Conviction
<1% Possession
<1% Prohibition
<1% Property Damage
<1% Public Nuisance
<1% Public Utilities
1% Replevin
<1% Restraining Order
<1% Review - Other Local Government/Person
<1% Quiet Title
<1% Writs/Contempt
34% Deed of Trust
<1% Services Rendered
<1% Sexual Harassment
<1% Special District
<1% Specific Performance
<1% Wages
<1% Workman's Compensation
<1% Writ of Habeas Corpus
<1% Wrongful Death
<1% Wrongful Death - Motor Vehicle
Most civil cases relate to taxes and land issues. The next biggest area is commercial litigation.
I think creative solutions and a balanced approach make for better dispute resolution. "Tort reform" is just insurance company profit protection via political cronyism and master bloviation.
#5
Texas used to be a plaintiffs' jurisdiction. Think people like John Edwards. Now the trial lawyers are leaving and more doctors are moving to in. What's not to like?
#6
The loser pays plan is to reduce frivolous lawsuits and law suits brought as extortion. If a law suit is filed with the sole intention of getting a company or corporation to file out of court, this option stops that. In California, many architects and engineers settle cases of "design liability" out of court even knowing that the case was winnable if the architect or engineer had the funds to mount a credible defense (which most of them do not).
In California, many small businesses are hijacked by frivolous lawsuits over improper signage or handicapped accessibility issues. The state legislature in California has passed so many odd business regulations, it is almost impossible to keep track of them.
The fact that there are more lawyers in California than doctors makes having any type of business a risky proposition.
Posted by: Bill Clinton ||
09/02/2011 15:17 Comments ||
Top||
#7
In Florida, men have to pay for litigation entered by their divorcing wives. Some have to apply for a bridge-loan every month, and suffer liens on property. If they can't get loans or liquidate property, then are bankrupted. Then their credit is screwed and they have to submit to default proceedings.
#9
Rule 11 (Federal and, probably, also in every state's Rules of Civil Procedure) already severely punishes the filing of frivolous lawsuits. Rule 11 already allows for fee and cost shifting in the case of a frivolous law suit.
So, why "tort reform"? "Tort reform" is just insurance company profit protection via political cronyism and master bloviation.
Bear in mind the basic premises of Signal Detection Theory. To the extent you seek to eliminate False Positives, you will necessarily increase False Negatives. The insurance companies know this, and are using a "Tort Reform" strategy to game conservatives into increasing insurance company profits. Better, I say, to have a hundred losing (but not frivolous) cases, than that one truly injured person is denied justice and their day in court.
On the other hand, if the case is frivolous, use Rule 11 and fry the bastards!
President Obama's forthcoming "jobs package" is what the country gets when it elects a president who spent more time organizing people than hiring them.
Obama needs desperately to find a way to boost job creation--both for the country's sake and his own political future--and yet previews of his speech allow me to make an early prediction: The economy will continue to sputter and unemployment will remain in the 8 percent-plus range until, well, January of 2013 (if you know what I mean).
The president persists in pushing programs that cost billions of dollars and do not create sustainable jobs, and he refuses to embrace policies that will. Pretty accurate and scathing review of Obumble's performance so far. Needless to say, teh 0ne needs to be fired before the rest of the country can get to work.
#3
Next week's speech: take a shot every time he says invest in green jobs. You don't need that liver
Posted by: Frank G ||
09/02/2011 10:39 Comments ||
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#4
Take, for example, the hints that Obama wants to expand his job-subsidization efforts to the private sector by giving employers a tax break to make it less expensive to hire workers.
Ahhh yes, the old "tax break" trick eh. Every politicians favorite ploy to avoid that messy appropriations process. On top of that they get to pretend they are giving you something by letting you keep your own money. Officially their called "tax expenditures". Except when liberals don't like them. Then their called "Loop-holes". The O-Team has said all of the President's proposals will be paid for. Any one wanna bet that his tax breaks will be funded through eliminating other tax loop-holes?
#5
The O-Team has said all of the President's proposals will be paid for. Any one wanna bet that his tax breaks will be funded through eliminating other tax loop-holes?
Pretty much what Governor Brown is pushing in California.
Most Palestinians, varied as they may be politically, intellectually and socially, often draw a connection between the Declaration of Independence that Yasser Arafat announced in 1988 and the current UN- based battle for statehood.
Nonetheless, the distinction is significant and easy to point out. The former was a simple expression of the desire for freedom and independence despite the presence of an occupier over the lands occupied in 1967. Although this declaration neither led to the Oslo Accords nor did it have any foundation in international law, it was still supported by, roughly, 100 countries.
If successful the current approach, on the other hand, would position the Palestinian issue completely differently within the international community. This would transform the legal status of the Palestinian issue into that of an occupied state and an occupied people.
This is a landmark transformation that would allow Palestinians to pursue their rights through the international legal system, whatever that may entail.
However, the fear remains of the effect that this political project may have on the Palestinian national constants. What would the effect be on the Right of Return? Or on the Palestinian Liberation Organizations ability to represent the Palestinian people?
Regardless of these differences between the legal statuses of both historical events, the key question is: why is the new diplomatic maneuver so lacking in popular support, especially if compared with Arafats immortal declaration? Why is this the case although the DOI all but lacked any international legality that a U.N. guarantee of statehood possesses?
Here, there is a fundamental reason behind the apathy in the popular sentiment towards "Mission September."
This difference is that the DOI came as the result of an extraordinary revolutionary effort with the First Intifada as its catalyst. It was an unprecedented event that was not only an act of the official representative of the people (the PLO), but it was an act by the people themselves.
This was in the horizontal, rather than hierarchical, nature of the First Intifada that encompassed the entire Palestinian social and political spectra. Moreover, the First Intifada was an exhibition of popular uprising with the Palestinians practicing minimal violence, while enduring the bulk of the weight of the Israeli military machine. As a result, the international sentiment looked upon the Palestinian cause more favorably.
There is no doubt that the long struggle that the Palestinian officials and civil society have embarked on lately, has been commendable. This effort is of such dedication and effectiveness that it has caused the Israeli political elites unrest to which they are not accustomed. Israeli diplomacy has mobilized to gather support in Europe and the USA on a wider range than anything in recent memory to attempt and abort the Palestinian efforts.
Ironically, the Palestinian effort has been successful and international support for the cause has grown. Meanwhile, the Palestinian public remains detached from its formal representation. Why?
Firstly, the Palestinian formal institutions have been concentrating on self-improvement with the September deadline in mind. This is of paramount importance, without question, for it is a key to convince the UN of the validity of the Palestinian demands and the ability of the Palestinian Authority to carry the burden.
However, this undivided attention has resulted in the alienation of the concept of liberation from its popular base. Liberation has been marginalized and has lost its popular characteristic and general public enthusiasm towards it has waned.
The people view "Mission September" as the duty of the Palestinian official institutions, not the people themselves. Most Palestinians view believe the responsibility to be the Palestinian Authority's and not the people's, unlike the 1988 DOI.
This same understanding, as flawed as it is, has extended to all other aspects of the political arena. Moreover, the ever-increasing rate of employment in the Palestinian public sector has changed the perspective of these employees into that of the PA and not the original revolutionary thought of the PLO.
As a result, the role of political fractions in the political arena has diminished, especially that of Fatah, since it is now viewed as the ruling party rather than a "Liberation Movement."
Secondly, the people have not only lost connection with the parties, they have also lost all confidence in their actions as several surveys have confirmed over the past few years.
This sentiment is not coincidental, but it is the result of the cumulative shortcomings that the people have seen from their leadership.
An example from the not-too-distant past is the official Palestinian reaction to the Goldstone report on Gaza. In the case of the report, Palestinian civil society and legal organizations rallied for months on the international stage to reprimand Israel for its brutality during the 2008/2009 onslaught on Gaza.
Meanwhile, the PA retreated from that position in Geneva after Israeli threats to suspend the delivery of the Palestinian tax revenues and American threats to suspend all financial aid to the Palestinian Authority.
In light of this, one is left to wonder if these same threats can lead the Palestinians to draw back their UN proposal under the threat of the Israel/American financial "big stick."
Thirdly, should "Mission September" fail, or succeed for that matter, Palestinian officials have talked of available strategic alternatives. However, many, if not most, sectors of Palestinian society do not view themselves as partners in this process or these alternatives.
The public views the process as anything but transparent or flexible. The people were never consulted or informed about its structure. As a result, the people will not be dedicated to a plan that is dictated to them.
Regardless of the elitist nature of "Mission September," it is only a few days away and approaching quickly. Retreating before Israeli economic threats and an almost-certain American veto is not an option.
Such a retreat would set the Palestinians back into chaotic dual negotiations that will manage the crisis but solve nothing. It will also result in further division in the Palestinian stance, where it will not help build Palestinian internal reconciliation but will hammer the last nail in its coffin.
Moreover, it will deepen the mistrust between the people and their leadership. Finally, it would undermine any credibility that the PA has with any of the 124 countries who vowed to support its bid for statehood and torpedo any future attempts.
"Mission" September is an ambitious attempt to salvage two decades of useless negotiation, mixed with great degree of mistrust towards political parties and four decades of resistance.
However, it is not a magical solution for the Palestinian Diaspora. Israel will not dismantle the settlements in the West Bank nor will it recognize the Palestinian state regardless of the outcome in September.
A real victory would be a successful mission in September with the Palestinian people backing it, instead of watching it.
Akram Atallah Aalyasa is a researcher at Fafo -- the Norwegian Institute for Applied International Studies
A multi-volume chronology and reference guide set detailing three years of the Mexican Drug War between 2010 and 2012.
Rantburg.com and borderlandbeat.com correspondent and author Chris Covert presents his first non-fiction work detailing
the drug and gang related violence in Mexico.
Chris gives us Mexican press dispatches of drug and gang war violence
over three years, presented in a multi volume set intended to chronicle the death, violence and mayhem which has
dominated Mexico for six years.
Rantburg was assembled from recycled algorithms in the United States of America. No
trees were destroyed in the production of this weblog. We did hurt some, though. Sorry.
President Obama's forthcoming "jobs package" is what the country gets when it elects a president who spent more time organizing people than hiring them.
