Even though I don’t really feel like starting another blog feud with Overlawyered today as it is Organic Act Day in the US Virgin Islands, I will direct your attention to the extensive discussion at Blog702, in which the author analyzes Ted Frank’s argument that doctors should be able to invoke some form of business judgment rule when hit with a malpractice suit. Post #1; Post #2. One commentator points out that the Blog702 guy is probably the most polite guy in the blogosphere.
Personally, I find it next to impossible to have a serious conversation with people on tort reform. Defendants have managed to raise peoples’ passions so high that they are completely unable to read an appellate decision on the subject, and will constantly cite the McDonalds’ Coffee Cup case (where the only published order is from the trial court reducing damages.) See our post here. I mean, to me, it is strange that people whose lack of education would prohibit them from seriously applying to law school or making more than $40,000 per year at an insurance company will act as if the greatest crime in the world is that insurance company making a payment for someone’s losses that might not be deserved.
I also noticed that lawyers, most of whom are not formally schooled in economics will invoke economic terms to justify their positions, without really understanding that economics itself doesn’t necessarily provide a normative guide to what the “law” should be. Likewise, many economists don’t really know what the substantive law is in an area, or even have a grasp of why lawyers might be arguing over an issue.
On the other side, asking someone who was injured by a drunk or incompetent doctor whether they should have to foot the bill for their injuries (assuming the doc didn’t cut off their feet) probably isn’t the most productive intellectual exercise.
Anyway, the Blog702 guy has some interesting ideas and gets points for politeness.
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