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THE BHOPALIZATION OF AMERICAN TORT LAW 99 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. Inefficient Compensation The new tort law does not serve as an effective tool for compensating public-risk victims, either. One might think that the loss for the large, corporate defendants must be a gain for small, individual plaintiffs, and this is indeed a belief that the Trial Lawyers of America have cultivated with the greatest and most delicate care. But litigation is by no means a zero-sum gameâat least not until it is understood that lawyers themselves are always among the players and invariably among the winners. Study after study has revealed that the tort law is highly capricious, inefficient, unfair, and most of all, terribly costly. For every dollar that finally ends up in the pocket of an injured plaintiff, perhaps three to five are diverted to lawyersâlawyers for the plaintiff and defendant, judges, law clerks, expert witnesses, and miscellaneous other camp followers. The tort system is, quite simply, an insurance scheme with astronomically expensive agents and middlemen. If a private insurance company pocketed 80 cents on every dollar collected, it would surely be prosecuted for fraud. Yet the tort system provides insurance at about that price. On top of this, many injured plaintiffs do not recover at all from Tort Law Insurance, Inc., while a quite unacceptable number of uninjured plaintiffs recover in large amount. The new tort system has a high degree of randomness to it. This appeals to gamblers, of course, as well as to "house" employees who take their cut in any event. Insurance, however, is supposed to take the gambling out of life. Kindling the Flames Finally, the new tort law does not offer one useful social function that was certainly provided under the old tort law: resolving fresh, focused, bipolar disputes. Some method must exist for resolving civil controversies, and as a sociological matter it is probably best that ordinary two-person quarrels be resolved by neutral nonexperts and lay juries. Not because these traditional decision makers are more likely than specialists to render verdicts of Solomonic insight and wisdom, but because they are most likely to be perceived by the public at large as accessible, moderate, and experienced with life's more ordinary vicissitudes. As a great judge once pointed out, it is often more important that things be settled than that they be settled right. The new tort law does not settle, it unsettles. When 3 million plaintiffs sue 60 defendants for something that happened 30 years agoâor that may happen 30 years from nowâthe courts do not deal with a "dispute." They are
