As an American, I am proud of our country’s heritage which embraces a broad spectrum of ideals including what are traditionally known as “liberal” or “progressive” values as well as “conservative” values. I think both John F. Kennedy and Ronald Reagan were great leaders in their own right who probably embody these two traditions the best. While it is apparent from the last few elections that Americans seem to be embracing many centrist views as well, there are many who, at least in part, have a stronger ideological lean towards what they believe to be “liberal” or “conservative” values. In my opinion, no matter where you come down on the political spectrum, the notions promoted by “tort reformers” are not supported when you truly understand what this “reform” movement is all about.
What is “Tort Reform”?
Our American system of jurisprudence developed from Anglo-Saxon law over hundreds of years. As I’ve blogged about before (see here) , our founding fathers fully supported the right of the individual to redress through the civil justice system by enacting the 7th Amendment to the U.S. Constitution which guarantees the right to a trial by jury in civil cases. From colonial days until now, this system has continued to develop to allow individuals and classes of persons who have been harmed by wrongdoing or negligence (i.e. “torts”) to seek monetary compensation through a civil jury trial. What “tort reform” aims to do is to issue, by government decree, that individuals and classes of people should not be able to bring civil actions in certain instances and/or should be limited in the amount they are able to recover by a predetermined structure as opposed to the judgment rendered by a jury of their peers. It comes in many forms but, includes proposals to limit class action lawsuits, to shorten the statute of limitations (time deadline) for filing personal injury claims, and to put a cap on the amount of damages for out of pocket losses like medical bills and lost wages and/or general damages for the pain and emotional distress caused by a catastrophic injury or death caused by the wrongdoing of another individual or business. The vast majority of “tort reform” advocates are large corporations that have disseminated false information that there is a “tort crisis” in America and that “run away juries” must be kept “in check”. In fact, civil lawsuits related to personal injury claims and average jury verdicts have been declining for almost three decades and now constitute a mere 4-5 % of the total number of civil claims being filed in the U.S. (the vast majority of which are business to business disputes and not injury or death claims).
Why is “Tort Reform” Not Supported by Liberal or Progressive Values?
I think the term was best summarized by J.F.K., when he defined a “liberal” as follows: “someone who welcomes new ideas without rigid reactions … someone who cares about the welfare of the people – including their civil rights and their civil liberties.” Likewise, in The Conscience of a Liberal, by Paul Krugman, a “liberal” is defined as “someone who believes in a relatively equal society, supported by institutions that limit the extremes of wealth and poverty in society … [and supports] democracy, civil liberties and the rule of law.”
To me, there can be no greater forum for democracy and the rule of law supporting the common welfare of all spectrum of society than the civil justice system. Civil courts are the one (and sometimes only) place where a common citizen can come and air his or her grievances against even the largest and most powerful corporation or individual and have a jury decide how “justice” might best be served. “Tort reform” limits this right of the individual that our founding fathers felt was both a civil right and a civil liberty as expressed in our Bill of Rights. “Tort Reform” is a scare tactic propagated by mostly large corporate interests that would have us believe that exercising our individual freedoms is “killing American business.” In fact, what it is doing is keeping corporate America in check by providing a disincentive to produce dangerous products or to do things that harm the environment or otherwise endanger our health and safety by the constant possibility that legal action can be taken if those businesses put “profits over people.”
Why Does “Tort Reform” Not Reflect Conservative Ideals?
Conservative ideals in modern America tend to value a restrictive role of government influence in the lives of individuals. As stated by William F. Buckley, “It is the job of centralized government (in peacetime) to protect its citizens’ lives, liberty and property. All other activities of government tend to diminish freedom and hamper progress. ” Likewise, Ronald Reagan was famous for his quote, “government is not the solution to our problem; government is the problem.” Why then would any true “conservative” support measures which allow the government to dictate when any individual or group of persons should have access to the U.S. court system, whether or not they are entitled to redress if they are wronged and how much they may receive for such wrongdoing? True conservative values eschew such government restriction of civil liberties, do they not? Totalitarian states dictate to the people what they can and cannot do and severely restrict individual liberty. In America, conservative ideals strive to allow individuals freedom to exercise their rights as outlined in the Bill of Rights and other important memorials of civil liberty without the “State” limiting those rights.
No matter whether you consider yourself liberal, conservative or centrist, supporting civil liberties and the rights of all Americans to civil justice should be something we can all believe in and get behind. The next time you are asked to serve on a civil jury, do so proudly. If you feel that the plaintiff has not proven his or her case, then you should voice this in the jury room during deliberations. If you feel that the injured party has proven their case and should be entitled to each and every damage caused by that negligence or wrongdoing, then be bold and stand up for the rights of that person to full and complete compensation. Vote for politicians that refuse to compromise and “sell out” to special interests and lobbyists who are hell bent on preserving their profit margins at the expense of your personal liberties. This is the American way!!