Tort Reform™ is an Attack on Constitutional Rights


I wrote yesterday
on damage compensation caps, 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™ also raise serious
and fundamental challenges to the role of the jury in the
administration of justice and protecting American freedoms.

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

”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).

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 to 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:

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

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

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.”


  1. The statements in this post are so rational, so correct! and now we have an effort on the part of corporations to have legislation passed which denies people the right to sue companies when they are harmed by drugs which have received FDA clearance. Chipping – no, chopping away at our safety and denying us our right to protect ourselves by suing. Really bad, undemocratic (small “d”) idea!