4. Restore the requirement of causation

One of the principles which has suffered the most in the judicial rush to compensate the individual is causation. The focus of the courts has been almost exclusively on compensation of the individual, not on the question of who caused the injury. If employers are going to be treated fairly by our system of law, the principle of causation must be restored to its former preeminence. First and foremost, this means abolition of joint and several liability. In this era of pursuit of the deep pocket, the imposition of 100% liability on parties with marginal fault is inexcusable. If juries are permitted to let their hearts speak for them by assigning tiny percentages of fault to rich defendants, so that plaintiffs can recover large damages, then the system must respond by limiting liability to the percentage of fault each defendant is responsible for.

More modest changes are also possible here. For example, manufacturers should not be held liable for injuries which are due to alterations of their products. The pretense that a product maker should be held liable for a plaintiff's injuries because the product maker should have anticipated tampering with the product and done something to ensure that such tampering does not succeed is a compensation-oriented fallacy, pure and simple. It has nothing to do with causation, and everything to do with redistributing wealth from "big" companies to "little" consumers and employees.

The responsible employer can control only those aspects of his business where there is cause and effect. He cannot control the behavior of wrongful third parties that alter products, remove safety equipment, fail to maintain products, or become insolvent. The responsible employer should not be held liable for the conduct of such wrongful third parties.