In Tort Reform Debate, the Real Issue Is…
In the tort "reform" debate, the real issue is jurors' rights. That's according to John Vail, Vice President and Senior Litigation Counsel at the Center for Constitutional Litigation in Washington. Consider this "recommended reading." Here's an excerpt from his recent article in The National Law Journal:
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...Read the Full Article Here
Mr. Vail continues the article by exposing the power struggle that is going on just below the surface of the tort deform debate. He argues much more articulately than I can, something quite similar to what I argued in a recent comment thread debate--that while the trial lawyers vs. corporations battle is quite interesting, what's really important and what's really at stake are people's legal rights, including our right to participate in a democracy rather than just be told that we live in one.
The jury trial thing--both the right to participate in one, and the right to have one if you've been injured-- is an aspect of a larger struggle against unchecked corporate power. It's part of a struggle to reclaim the power of individuals, of regular people, to have a role in fighting for a more just society. And to preserve that role as it is guaranteed through our civil legal system.
The article is a good read and it really gets to the heart of the tort "reform" debate.