Here’s The First Amendment of the Constitution:
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.
In other words, Congress isn’t supposed to restrict the right to petition the Government (i.e. 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.”
The constitutional implications of tort reform is one of those issues that divides us. This issue is political fodder in the news, elections, and in the lobbying community. We have been convinced that frivolous lawsuits and our generally litigious society are causing our health care costs to spiral out of control.
In 2004, the American Constitutions Society held a summit on the Constitution and tort reform. Robert Pratt (who was then a U.S. District Court Judge) made some excellent observations on these issues.
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.
To me, this strikes at the very heart of the issue. Insurance companies, lobbyists, and yes, the media, have convinced us that in order to save the economy and lower our health insurance costs, we must eliminate frivolous lawsuits. This should come as no surprise. These are the very people that benefit from higher profits under protectionist tort reform laws. I mean, why not allow convicted criminals impose their own sentences. Obviously, we don’t allow this as we recognize that criminals will act in their own self-interests and impose sentences that society would deem far-less than fitting. Likewise, we need to be suspicious of the claims of insurance companies and other tort reformers as to the evils to be suffered as a result of litigation. And so, we are left with jury panels who are poisoned from the very beginning.
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?
I recognize that the judicial system is overburdened and often under-paid. But that is a problem that can be fixed in other ways than denying our citizens their day in court. Summarying out folks with valid grievances for more efficient docket management is not justice as contemplated by the founders.
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.