Legal News

The Legislative Checklist: One Approach to Tort Reform

By Ashby Jones

In December of last year, New Yorker writer Atul Gawande published a piece called “The Checklist” about how intensive-care personnel in hospitals were managing to avoid simple yet often fatal mistakes by following simple checklists of tasks.

We were reminded of Gawande’s article today when we were perusing the latest copy of American Lawyer and came across Peter Schuck’s provocative article on ways to cut down on unnecessary litigation.

Schuck (pictured, right), a law professor at Yale, shines a light on lawmakers the way Gawande targeted ICU workers. In Schuck’s mind, too many laws are created without lawmakers giving thought to a handful — a checklist — of key issues. Instead, these issues too often end up getting resolved in courtrooms across the country. Writes Schuck:

By the simple expedient of reviewing a checklist of such issues when drafting laws and then including provisions to address some or all of them, a legislature could in a few strokes reduce significantly the amount of wasteful litigation, just as WHO’s checklist will likely reduce costly surgical errors.

So what does Schuck suggest lawmakers “check off” before passing a bill? Start with these: “Does the statute permit a private cause of action for damages? Which courts have subject-matter jurisdiction and where must appeals be lodged? Is the statute retroactive?” Etc.

Schuck acknowledges that a checklist won’t cure all defects of a given piece of legislation. “Rather,” he writes, “the list would include only those relatively few issues that frequently recur in the administration of a large number of statutes . . . .”

As an example, Shuck mentions preemption. (Loosely defined, preemption issues, especially in the drug and medical-device context, ask whether and to what extent the federal Food, Drug, and Cosmetic Act preempts state laws that seem to preserve some role for tort claims against the manufacturers of FDA-approved drugs.)

Indeed, the Court’s most recent preemption decision (Warner-Lambert Co. v. Kent) dramatizes my point. . . . In Kent, an equally divided Court was unable to resolve a statutory issue. . . that has roiled the federal and state courts for many years but that Congress could have easily and more efficiently clarified one way or the other. This clarification would have avoided. . . enormous litigation costs, while preserving the Court’s very limited docket for cases dealing with constitutional questions or those (unlike preemption) that Congress cannot readily foreclose in advance.

Full post as published by Law Blog - WSJ.com on December 02, 2008 (boomark / email).