How Would the Founding Fathers View “Tort Reform,” and Would They Be Wrong?

February 1, 2011 in Articles | MARTIN WREN, P.C. | LEAVE A COMMENT

Virginia Civil Litigation Lawyers

Over the past decade or so, there has been an ongoing movement in our country for what has been termed “tort reform.”  Generally, this “tort reform” seeks to impose caps or limits on the amounts that parties who have been harmed would be able to recover in court.  The primary argument for this “reform” is premised upon a belief that juries can’t be trusted.  Urban legends abound of cases where juries have awarded individuals astronomical amounts for trivial injuries.  In order to prevent the harmful economic impact of these “outlandish” jury awards, the “reform” takes the form of capping the amount that “victims” can recover.  Although the caps apply to all awards, whether made by a judge or jury, clearly the impetus for the caps has arisen out of distrust for juries.

The United States Constitution preserves the right to a jury trial by one’s peers.  This is not surprising since our country was formed during a time of popular distrust of government and concern about governmental tyranny.  It is somewhat ironic that, according to media accounts and polls, the greatest support for tort reform appears to be found in among Republicans and Tea Party members.  One would think that distrust of government (or at least “big” government) would be core values of these parties. This is ironic because tort reform is essentially government taking action to regulate out of distrust for the citizens.  In effect, government is telling its citizens, we don’t trust you to decide things properly.  This notion is radically contrary to one of the basic core values of our country which is manifest in the very form and structure of our government.  We all learned in school about “separation of powers” and how that was an intentional effort to protect against a too powerful government.  Since the beginning of our nation, a key value was that the citizens should have a healthy distrust of their government – and not the other way around.

The right to have a citizen jury decide a dispute is in stark contrast to the government doing so – whether by a judge or administratively.   It is completely consistent with the sentiments and core values of our country that an individual would choose to have a citizen jury of his peers decide his case rather than entrusting that decision to a government that they had a natural distrust for.  “Tort reform” in its current form arises from a distrust of the citizens and a faith in government that is antithetical to core American values.  It reflects a radically different approach in which government, and not the citizens, is ultimately trusted.

My guess is that the founding fathers would find tort reform to be contrary to their core values and would be opposed to it.  Whether they would be right – that government imposed restrictions to jury decision making are not good– may well depend upon whether one is more inclined to trust one’s government or one’s fellow citizens to make the right decision.

John B. Simpson, the author of this article and a trial attorney with MartinWren, P.C., has practice Civil and Commercial Litigation and Family Law, including Divorce.  For more information about this article or his other practice areas, please contact John at 434-817-3100.

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