Thursday, August 04, 2005

Michael: Tort Reforms™ an Attack on Bill of Rights

I have written before about compensation caps on damage awards, marketed under the trade name Tort Reform™ by the GOP, and the damage it does to those harmed by medical and other negligence. But the ideas behind Tort Reform™ raise far more serious and fundamental challenges to the role of the jury in the administration of justice and protecting American freedom.

I’m not alone in this opinion. James Madison said that trial by jury “is as essential to secure the liberty of the people as any one of the pre-eminent rights of nature.” Yet the right to have the facts of a civil dispute, including compensation, decided by a lay jury, is so offensive to corporate interests that they would have you believe that our best and brightest are unable to design safe products, deliver quality medical care, or perform a host of other activities unless we gut one particular of our Bill of Rights – the Amendment VII, which reads:

”In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…”


The right of access to jury to determine the facts is a basic human right that goes back to the Magna Carta in our own culture’s immediate history, and back to the Greeks and the Romans during some of the earliest civilized periods of human history. For all that time citizenship has included the unimpaired right to have the facts of your plight, including the necessary remedies, decided by a sample of your peers. “Juries represent the layman’s common sense and thus keep the law in accord with the wishes and feelings of the community,” said USSC Chief Justice Rehnquist (in one of the few instances that I agree with him wholeheartedly).

And therein lays the problem. Multinational corporations and mega-conglomerates have no desire to answer to the wishes and feelings of the communities they operate in. It was a similar motive that led to the ‘reform’ of class action suits by removing them to the federal courts earlier in 2005. Less local bias is said to exist in the federal courts because judges are less biased (i.e. not elected popularly) and the juries are said to be more sophisticated (i.e. from metropolitan areas), but there are much greater delays in the overworked federal courts, preventing many from receiving timely relief.

Bit by bit, the Tort Reform™ advocates seek chip away at our Amendment VII constitutional rights. Call it what you will, but when an organized group engages in a systematic campaign to deprive Americans of their rights under the Constitution by lies and deceit, scare tactics and economic extortion to achieve pecuniary gain, I call it treason - a creeping, wheedling, two-faced treason, which conspires under the cloak of business justification to cut the beating heart of our personal and economic freedoms out of the body politic.

The great Blackstone, in his commentaries on the common law wrote:

”The very essence of civil liberties certainly consists in the right of every individual to claim the protection of the laws, whenever he receives and injury. One of the first duties of government is to afford that protection…”


The party currently in power, and many DINOs as well, have abdicated their role as the protectors of citizens’ rights in pursuit of the siren song of bigger profits and fatter campaign coffers. Instead of insisting that compensation for all damages caused a victim remain in the capable hands of a jury of citizens, they want to set arbitrary caps that allow negligent corporations to plan and budget for their own irresponsibility more effectively.

The duty of a responsible person is to take reasonable care so as to avoid doing harm to others in the first place, and thus avoid liability; this is the bedrock of our system of torts. Arbitrary caps allow corporations to plan to do harm, while still ensuring their liability exposure is limited. Arbitrary caps not only remove the incentives for responsible behavior, but leaves many families without the compensation they need to take care of loved one properly, possibly for a lifetime, or to replace the income lost to the family by a wrongful death or disablement.

Who will pay for those losses? The one who is responsible in the eyes of the law? No. Under Tort Reform™ nobody is responsible for anything above the politically arrived upon formula. Without full and adequate compensation an injured family will suffer and fail, have to rely on charity, or get government assistance just to survive. The very idea of personal responsibility is casually disposed of by Tort Reform™ advocates. Compensation caps transfer the cost of harms from the responsible party to the innocent party who is least able to afford the loss. It’s simply unjust.

There are no externalities one can dump into a tailing pond and forget about for 50 years in personal injury cases, especially medical malpractice cases. The abrogation of the financial liability of tortfeasors in such cases results in imposing often unbearable burdens on a family, or on a state agency and thus taxpayers, or on a charitable concern – when the burden properly belongs to those who negligently caused the harm. For a party that prides its self on its respect for the value of self-reliance and responsibility, the GOP is certainly abetting and encouraging just the opposite for corporate and professional persons by attempting to insulate them from the full responsibility for their negligent business activities.

A final thought on the 7th Amendment right of juries to decide civil cases:

“Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.”
-Patrick Henry (1788)


To those words of wisdom I would add:
“Doubly so if they are bearing loupes and cleaving mallets, speaking of how they plan to remove the excesses.”

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