Courts

Tort Reform Used To Matter But That Was Before Torts Could Own The Libs!

A quick tour of conservative social media shows a lot of giddy excitement over an outrageous, laughable multimillion-dollar verdict.

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Oberlin College

A few years ago, representatives of the U.S. Chamber of Commerce rolled up on Above the Law’s offices to chat with me about their work. It was a perfectly lovely meeting even though they were mostly bemoaning “trial lawyers” who they said were lobbying legislators to allow driverless cars to be regulated exclusively through post facto litigation.

“Balderdash!” I said. “That’s inefficient and dangerous.” They giddily agreed. “So I assume you’re backing a robust federal regulatory regime instead.”

This prompted awkward silence for a few beats. Government regulation is, after all, what the group spends the other half of its time fighting. Pushed to face the logical conclusion of shutting down one avenue of consumer protection, they cringed a bit at the realization that there’s really only one option left.

And that’s the whole problem. When the zero-sum nature of the competing pillars of the right-wing legal project gets exposed, there really isn’t a unifying logic to playing both sides of it other than “whatever lets a business incur harm on others without oversight.” But that doesn’t play as well on television as the faux aphorisms about “greedy trial lawyers” and “business-crushing regulation.” Tort reform isn’t much of a core philosophical truth, it’s mostly a catchphrase.

This anecdote is fresh in my mind today as conservatives are taking a victory lap after a bunch of townies outside Oberlin College formed a jury and awarded $44 million to a bakery that students protested and the school stopped using.

A jury has awarded $33.2 million in punitive damages to Gibson’s Bakery, whose owners claimed Ohio’s Oberlin College and an administrator hurt their business and libeled them during a dispute over a shoplifting episode that triggered protests and allegations of racial bias.

The Chronicle-Telegram reported the same jury awarded Gibson’s business and family members more than $11 million in actual or compensatory damages, bringing the total award to more than $44 million.

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The facts, as they seem to be coalescing, is that the white bakery staff confronted a black patron who they said was shoplifting and this incident triggered protests. Assuming the bakery is, in fact, right, then… well they still probably don’t have a claim against the students. That seems very much a statement of opinion, but whatever. Let’s pretend there is a claim against the students. Is it a $44 million claim? For a bakery in a town of 8,000 people? Absolutely not.

This isn’t even like the class actions that tort reformers routinely complain about where the whole point of the oversized award is to compensate a large class of not necessarily known victims and award lawyers taking a public interest risk of self-financing a litigation on behalf of those victims. This is a discrete incident. The damages are easily calculable and hardly $11 million.

And to go after the school?!? I’m old enough to remember when conservatives passionately argued that private schools, like Oberlin, should have the right to be segregated. Now private schools can get sued for making… business decisions on where they choose to buy cakes? Even taking the most tenuous “tortious interference” logic — which is really out there — to get the school into this case, it still couldn’t remotely add up to this award.

Meanwhile, the National Review, a bastion of conservative thought that has repeatedly trumpeted tort reform for years, called it a “Blueprint for Fighting Back.” Presumably the “fight” is against people who complain about “racism” and “sexism” and the like. Others derpheads joined in.

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The last Tweet’s point is that the school was really asking for it when it suggested that a big award would hurt students… a group that the town almost assuredly loathes despite their economy largely revolving around the school. Cutting off noses to spite faces and all that rot.

Walter Olson of the CATO Institute deserves a lot of credit here since he appears to be the only prominent legal conservative willing to stand up for the principles he’s espoused his whole career:

He also shared a long Twitter thread that succinctly goes through how much of a non-case the bakery actually had:

I fear Olson may be learning what a lot of us already sussed out. There’s not really an appetite out there for his ideas on “tort reform.” There’s just an appetite for trolling “social justice warriors” and he’s only managed to intersect with those people throughout his career in an alliance of convenience. When the chips are really down, they’re ready to torch his passion project in an instant.

This is an embarrassment to the justice system even for those of us with a forgiving view of the appropriate extent of tort damages. For anyone who’s ever called for tort reform, it should be a disgrace.

But that would require internal logical consistency… something in short supply these days.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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