Slips, Falls, and the Situation of Tort Reform(ers)

From time to time, the issue of tort reform comes to the fore in the legal and policy discourse. Sometimes, tort reform is highlighted by a presidential panel on the subject. At other times, it is highlighted by a leading tort reform advocate’s slip-and-fall accident. As has been making the rounds on the internet (for example, see here, here, and here), Robert Bork slipped and fell last year when approaching the dais at the Yale Club of New York. A year later, he is suing the Club for $1 million dollars in compensatory damages and unspecified punitive damages, according to the recently filed complaint Normally, such a lawsuit would be nothing unusual; after all, there are thousands of lawsuits filed each year. What makes this lawsuit noteworthy — as others have noted — is that the plaintiff is a long-standing advocate of tort reform. In a 2002 law review article (25 Harv. J. L. & Pub. Pol’y 849 (2002)), Judge Bork wrote:

The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress’s power, may now be constitutionally appropriate.

Id. at 865-66. And in 1995 testimony before the Senate Judiciary Committee, Theodore Olson cited a letter from Judge Bork letter to Newt Gingrich (reproduced at pages 43-45 of the hearing transcript), saying “that ‘abusive litigation’ and ‘excessive damage awards’ are ‘national problems’ that fall squarely within [Congress’s] commerce [clause] power because they are ‘having a profoundly adverse impact on interstate commerce.’” (It may be worth noting that Olson’s current firm is the one representing Judge Bork). So what gives? Has Robert Bork suddenly had a change of heart, such that he thinks that the tort system should favor plaintiffs and that tort reform is unnecessary? Is he just a hypocrite, arguing, as DailyKos suggests, “Tort reform for thee, but not for me”? Has the high-powered corporate law firm Gibson, Dunn & Crutcher decided to get into the personal injury field — a practice area that, at least as of today, is not listed on their website.

People may have their own answers to these questions, but a basic situational analysis suggests another answer: Bork is not a hypocrite — he is just moved by his situation. A phenomenon known as the “actor-observer effect” is well documented in the psychological literature. In short, when bad things happen to us, we attribute them to our situation. When bad things happen to other people, we attribute them to their disposition. For example, in one study, young drivers who drove recklessly offered situational explanations for their own behavior (they were in a hurry or running late) but dispositional explanations for their friends’ behavior (the friends were trying to show off or act cool).

This seemingly intuitive finding goes a long way toward explaining Judge Bork’s experience: when someone else trips and falls, we see assumption of risk, personal responsibility, and a frivolous lawsuit. However, when we trip and fall, we see ourselves as a victim of situation: others had control over the arrangements, the dais was “unreasonabl[y] h[igh],” and the Yale Club “wantonly, willfully, and recklessly fail[ed] to provide a safe dais and stairs.”

Indeed, the commentators who attribute Bork’s lawsuit to hypocrisy or inconsistency themselves make the fundamental attribution error or what Situationist Friend Dan Gilbert calls the correspondence bias — our tendency to attribute a person’s actions to his disposition (hypocrisy, inconsistency) rather than his situation (a sense of outrage, a feeling of being wronged, and so on). Judge Bork’s own former colleague at the American Enterprise Institute, going straight to the Judge’s disposition, has called the lawsuit “embarrassingly silly.”

Our (adversarial) tort system is useful, among other reasons, because (as Situationist Contributor Jon Hanson teaches his first-year students) it allows for the airing of multiple attributional accounts. Predicting the future is a delicate business, but it is a near guarantee that the Yale Club’s answer to Judge Bork’s complaint will argue that he assumed the risk, should have been more careful, or should have taken it on the chin (or knee, as it were) and not filed such a frivolous lawsuit. In short, in response to Judge Bork’s lawsuit blaming the situation, the Yale Club will answer and blame the Judge’s disposition.

As Situationist contributor Tom Tyler points out in a variety of articles, people will obey the law if they believe it to be a legitimate institution. In turn, people think of the law as legitimate if (among other things) they have an opportunity to tell their side of the story, are judged by a neutral decision-maker, are given reasons for an adverse decision, and are treated with (perceived) respect. At least in theory, our tort system is designed to provide exactly those elements.

In short, then, Judge Bork’s lawsuit is not surprising, and it may be frivolous. Like most of us, when his situation changed — when he felt wronged — he wanted a forum for redress of his (perceived) wrong. His claim might be legitimate or not; that is for Judge Buchwald (and her clerks) to decide. In any event, social psychology teaches us that when we feel slighted, we want a forum to vindicate that anger, but also that we are likely to misjudge others when they feel the same way. Law generally would do well to learn from those insights — and Judge Bork (whom we wish a speedy recovery) would do well to remember those insights when he is next asked to opine on tort reform.