From my not-so-nuanced understanding of Libertarian thought, tort law is mostly an abomination. I reckon that some room is made for intentional torts (e.g., if my neighbor does doughnuts on my lawn, the legal system would allow me to obtain damages) and other obvious cases, but what about, say, product liability? If I sell pencils coated with cyanide-based paint, knowing full well that most people chew pencils, then I won’t sell many since people will refuse to buy my pencils. Do the first consumers have legal recourse?
How does Libertaria define the extent of tort law?
(Kind of a GQ, but since Libertarian questions almost always end up here, I thought I’d start in GD.)
I consider myself a libertarian (little “L” – I don’t subscribe to the newsletter and I think the gold standard is a wacky idea), and I think this is a good question.
I personally think a whole lot of lawsuits are ridiculous wastes of time and taxpayer money, and that is an understatement. The problem is I don’t have the knowledge or experience necessary to make a sound judgment on the issue. I certainly see the need for reform, and sometimes wonder if there isn’t a way to make everywrong act against the law and just put wrongdoers in jail and leave the rest of us alone.
But like I said, I’m ignorant on the issue, and look forward to input from others here. Consider this a little bump.
I’m not aware of any strain of libertarianism that opposes tort law per se. Libertarians believe the function of government is to protect the life, liberty, and property of its inhabitants, and that seems consistent with the power to sue parties who infringe or damage the same.
In fact, in some ways civil justice is more libertarian-friendly than criminal justice, since it allows aggrieved parties to seek their own redress rather than relying on the state to prosecute wrongdoers. (Of course civil justice still requires the state to adjudicate the dispute, and enforce any settlement.)
I dare say that many libertarians oppose many aspects of modern civil law, such as forum shopping, class action suits, and unlimited general damages, but that’s different than opposing civil justice per se.
Tort law is an absolutely essential part of a free market society. I don’t know of any libertarians who oppose the right of the people to engage in legally binding contracts for example, and obviously such a system must include punishments and redress when people violate those contracts. Most also see crimes like fraud and negligence to be valid, and support the right of the state to in some cases jail such people.
Libertarianism isn’t anarchism. It’s not some wacky feudal state. It’s simply a society in which the government has a much smaller footprint. There’d still be a department of Justice, and courts all over the place, and lawyers, and crazy lawsuits and important lawsuits. What there wouldn’t be would be an EPA, a HUD, a DOE, a DOI, and all the rest of the society-controlling acronyms of government.
In the case you offer: selling products one knows are dangerous and not telling the consumer about said danger is a type of fraud. Fraud = coercion = justification for redress.
I’d agree that this type of thing should be actionable, but I’m not a Libertarian, so I’d agree that it should be regulated as well.
But if the seller didn’t actually make any claim as to the safety of the product, then would that still be fraudulent?
What if the seller didn’t actually know either way, but the product turned out to be unsafe? Is that actionable? What if the seller could have figured it out easily, but chose to stick his head in the sand?
I guess I’m asking for a clearer Libertarian definition of fraud.
Products liability law is very different to much of the rest of tort law. While I can see why a libertarian would wish to dispense with strict products liability, as a person should be able to contract with another person for the sale of goods in whatever condition, provided there is no fraud, I don’t see why the libertarian would necessarily want to give up on negligence based tort law.
If you take actions that through your negligence harm me, why would a libertarian say I should not be able to recover damages equal to that harm from you?
Products-liability actions can be grounded in negligence, strict liability, statutory/regulatory consumer protections, and/or breach of warranty. Only the last is a contract claim. Only the third, I should think, would be objectionable in principle to Libertarians.
Gee thanks, BrainGlutton. I actually know products liability law is a subset of torts law, which is why I said it was very different to the rest of tort law.
As I said, I think strict products liability is incompatible with libertarianism.
Negligence based tort law, on the other hand, isn’t.
The breach of warranty is an interesting point, since in additional to explicitly contractual warranties, we have implied, common law and statutory warranties. The latter cases look to me like regulatory regimes. Would Libertarians be okay with those?
Note that the Supreme Court recently ruled that it was proper for a jury to hold a pharmaceutical company liable in tort for failure to properly label the side-effects of its product, despite the fact that its warning label had been approved by the FDA.
I’m not a purist lib, so the academic nuances of what qualifies as fraud don’t really matter to me. I see no problem with having courts that can rule for example, that someone making pencils can reasonably expect that a significant fraction of people will chew on them, and thus that he was negligent if he used cyanide paint.
I’m not Tom, but I think it is quite silly that the government officially approves a label (‘approve’ hell, don’t they mandate it?) and the company can still get sued for the lack of information on that label.
I’m surprised nobody has brought up the $26 million dollar pants, or the burglar who fell through the skylight while breaking into a home, broke his leg instead, and sued the homeowner for a million dollars. Or the fact that doctors make $500k a year but have to spend $300k on malpractice insurance.*
There are cases a libertarian (or any right-thinking individual) should disagree with, while not necessarily damning the entirety of tort law. Reform, at least, is needed, is it not?
*These are scenarios I’ve heard from various random people over the years. Feel free to tear them to shreds.
Without getting into the specific facts of the case (since I haven’t read it), as a general proposition, I wouldn’t have a problem with this. What if the company in question had withheld pertinent information such that the government couldn’t come up with an adequate label? Typically, in the US, the government relies to a certain extent on companies to self-report certain things during the regulatory process, and only starts leveling fines or investigating once wrongdoing comes to light. In my hypothetical, the injured party would only be made whole with a verdict against the company, since government fines generally go to the government and not directly to the injured party.
and I think the gold standard is a wacky idea), and I think this is a good question.