Tort Reform And The Forgotten Freedom Of The First Amendment
Let’s Look At The 1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
So, the government isn’t supposed to make laws restricting the peoples’ ability to bring a lawsuit, right?
At least that’s my take. No, I’m not a constitutional scholar. But I do think that I can read English. While I welcome discussion on the point, my view is that the government isn’t supposed to limit our ability to “have our day in court.”
A discussion of the Constitutionality of tort reform is one of those issues that polarizes our society. Thanks to its other First Amendment buddy (the press), the freedom to petition the government for redress immediately brings to mind thoughts of frivolous lawsuits, alleged judicial hellholes, and the effect they have on business and health care costs.
At The American Constitution Society’s conference on the Constitutionality of Tort Reform in 2004, Robert Pratt, a U.S. District Court Judge, for the Southern District of Iowa, identified what I believe to be the core issues surrounding tort reform in our judicial system today.
Here is part of what Judge Pratt had to say:
And if you take it from that, at one time judges and juries had some power in the system and now what is happening is because of this campaign about legends in civil justice, we now have elected officials and even some judges who claim our system is a Legal Lottery, Jackpot Justice, Tort Hell, and of course this has all been created by greedy lawyers, irresponsible juries and yes, activist judges, which penalize Job creating businesses and harm our countries economic system.
The underlying premise is that we can only get back to the Good Old Days by eliminating those rights and those remedies, or scaling them back so as to allow for private arbitration systems that are set up by large employers and companies to resolve civil claims. Theres only one problem with this view: theres no evidence to support it. The media didnt create these legends but it cant be denied that they aided and abetted in what can only be viewed as a highly successful campaign at changing the terms of the debate about tort reform.
Excellent observations. This is the core of the issue. In my view, any law that abridges our right to petition the government for redress is in direct violation of the First Amendment. Additionally, tort reform simply hasn’t done what it was supposed to do in the areas that it has been in place.
Hence, our juries come to court shrouded by the evils of lawsuits, trials, and the very right to redress that it is their sworn duty to protect. The pendulum has truly been swung to limit those suffering injustice to have their day in court. And the protection expressly guaranteed by the First Amendment, is reduced to an illusion, the appearance of which we keep up with pre-trial summary dispositions.
The fact is that jury trial numbers are down. Judges work to “process” their dockets expeditiously. Judges have become bean counters just trying to get cases off their plate. Does that sound like a system of justice. Isn’t trial by jury a good thing?
While I am certainly sympathetic to the difficulties of an overworked, and often underpaid judiciary, I am far more sympathetic to those United State citizens that suffer injustices as a result of the slight-of-hand being pulled by insurance companies, lobbyists, and the tort reform movement.
Worst of all, their is an often overlooked incidental consequence of many tort reform policies. That is the problem of the disenfranchised juror. Juror participation continues to decline. Worse than finding participation to be annoying, many jurors come to court seeking to contribute to the tort reform movement. I can’t even begin to address unconstitutionality of such an arrangement.