Second, both Kinsley and James miss a more important and philisophic point that is at the heart of tort reform: our society is increasingly disassociating risk from responsibility, which in turn is creating perverse incentives for productive behavior in many parts of our economy. Let me explain.
If (God forbid) I need to get open-heart surgery, my doctor will tell me about the procedure and inform me that there is some risk that things will "go bad." "Going bad" could be the result of my own body's reaction to an invasive procedure or some freaky accident (e.g., a machine malfunctions as machines sometimes do). Also, the surgeon, being human, could make a mistake. Humans make mistakes; that's part of life. Knowing this information, and realizing that such a procedure is not risk-free, I make the decision whether to proceed with the surgery or not. In doing so, I implicitly accept the responsibility for any misfortunes that may happen.
If something "goes bad" due to the aforementioned factors, I (if I am still in a position to judge that things "went bad") or my family, should not sue. I took a risk and that risk didn't pay off. I need to accept responsibility for that. My doctor is not responsible for my body taking to the surgery poorly or for some honest mistake. (The problem here is that many people assume that honest mistakes are malicious or systemic mistakes — I'll return to this.) If I want to alleviate some of the downstream risk, I could purchase an insurance policy upfront that would compensate me (or my family) if something mistakenly "goes bad."*
Bingo. That is a HUGE problem today – people don't properly understand risk. If a doctor amputates your right arm instead of your left, of course you deserve a nice hefty settlement. But, if a doctor tells you the procedure is risky, or that it may not cure you, or that something worse may happen, you can't really sue. If you can't accept the risk, don't participate in the event.