The debate about tort reform is largely cast in terms of corporations versus trial lawyers, so it fails to capture what is really at issue: Are citizens in a democracy entitled to make decisions, or must they defer to elites at every turn?
It is unusual today to talk about the right to sit on a jury as one of the fundamental rights Americans possess, at least as important as the right to vote, but the framers were wholly comfortable with the assertion, and Lincoln described the jury right as the more important one.
And history makes clear that the right was equally valued in civil cases, in which the people stand between the aggrieved and the asserted doer of wrong, as in criminal cases, in which the people stand between the state and the accused.
We continue to value the jury in the criminal context, but we belittle it in the civil context. Why? Even if criminal defendants were dissatisfied with the jury system, they do not have at their disposal the political and communications resources available to corporate tort defendants.
In a concerted effort during the past several decades, corporate tort defendants have bombarded the media with stories about the assertedly grave injustices they suffer at the hands of scheming plaintiffs aided by greedy trial lawyers. They have constructed two mantras: “Legislatures make law, courts apply law” and “Juries find facts, courts apply them.” Both are nonsense, constructed for purposes of altering the political landscape.
Historic role of juries
State courts always made tort law, and the drafters of state constitutions understood and applauded that. So did the drafters of the U.S. Constitution. They clearly did not want federal courts to make tort law, but not because it was the job of Congress or any other legislature, but the job of the state courts.
Critically, that job was not to be done without the intercession of the people. The people gave the job of juror to themselves in part because they did not trust elected representatives to perform the function. The jury always was meant to be an exercise in direct democracy, and it always was meant to judge the conduct of private actors. In this way, the people could affect, directly, the development of private law.
When the jury trial right was constitutionally protected in the Seventh Amendment and in the state constitutions, juries decided what damages were to be awarded. The constitutions were written to protect this function. No legislature had power to change the decision of a jury, and the power of the judiciary to change it existed, but was highly circumscribed.
The fact/law dichotomy was seized upon by corporate tort defendants as an intellectual construct that permitted a generation of law students, trained in the law as an abstraction and not as a living, breathing, humanistic enterprise, to reason that, if damages are a matter of law, they are within the province of the legislature. See, e.g., J. Russell Jackson, “Rulings on Damages Caps,” NLJ, Jan. 14, 2008, at 13. As pure reason, that is a fine conclusion. As constitutional law, it is dead wrong. It also is dangerous, ceding to elites yet another function that the people thought they had reserved for themselves.
Replacing the common law
Tort reform is about transferring decisional power from the people to elites, further circumscribing the sphere of activities that are public. It is about replacing the methods of the Anglo-American common law � general rules, administered by the populace, informed by experience � with methods of European civil law � specific rules, generated and administered by elites, informed by abstractions. The former make the law more accessible to the people. The latter are more readily affected by elites.
We broke away from England, in part, because the king, in the words of the Declaration of Independence, was “depriving us in many cases, of the benefit of Trial by Jury.” We did not choose to adopt a system that was more like that of the Continent, and we certainly did not choose one that vested more authority in elites. Rather, in the contemporary state constitutions, we made the peoples’ right to decide “inviolate.”
From damages caps to health courts, tort reform seeks to take decisional authority away from the people. The debate about tort reform is a debate, ultimately, about whether ordinary people make the decisions that guide public life, or whether those decisions are made in corporate boardrooms.
The ways consumers are treated by health maintenance organizations, insurance companies and cellphone providers are directly related to the way the peoples’ authority over those businesses has been ceded to corporate elites.
If you love the way Halliburton is involved in decision-making about war, tort reform is for you. If you have misgivings, join the fray.
John Vail is vice president and senior litigation counsel at the Center for Constitutional Litigation in Washington.