Tort Reform And The Forgotten Freedom Of The First Amendment

The First Amendment to the United States Constitution states:

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.

To paraphrase, Congress shall make no law abridging the freedom to petition the Government for a redress of grievances.

Well, that’s how I read it. I make no claim to being a constitutional expert. However, I do feel fairly comfortable with the English language. To me, the First Amendment is one of the more straightforward parts of the Constitution and it says no eliminating the right to petition the government for redress.

I recognize that this is a complicated issue that has very smart people on both sides. On the other hand, it is not intelligence, but self-interest (and greed) that fuels this debate. However, I appreciate and welcome all viewpoints on this issue.

At The American Constitution Society’s conference on the Constitutionality of Tort Reform in 2004, Robert Pratt, a U.S. District Court Judge, for the Southern District of Iowa, identified what I believe to be the core issues surrounding tort reform in our judicial system today.

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.

Eliminating rights and remedies? Isn’t this exactly what the First Amendment prohibits? And from a practical standpoint, we have found that it just simply doesn’t work. Where are the glorious results that we are supposed to be experiencing in the areas in which tort reform legislation has been at work for over a decade?

Hence, our juries come to court shrouded by the evils of lawsuits, trials, and the very right to redress that it is their sworn duty to protect. The pendulum has truly been swung to limit those suffering injustice to have their day in court. And the protection expressly guaranteed by the First Amendment, is reduced to an illusion, the appearance of which we keep up with pre-trial summary dispositions.

With less and less jury trials every year, some judges argue that the system is working. However, these are the same judges that measure their success by their ability to “manage their dockets” as opposed to provide a fair forum for citizens to petition their government for redress. If “docket management” is the essence of being a good judge, then why don’t we simply turn the job over to computers? I know several CRM software solutions that could “process” cases far-more effectively than a human judge. The point is, that judges have sworn to be more than docket-managers.

While I am certainly sympathetic to the difficulties of an overworked, and often underpaid judiciary, I am far more sympathetic to those United State citizens that suffer injustices as a result of the slight-of-hand being pulled by insurance companies, lobbyists, and the tort reform movement.

Here’s an idea, why don’t we just let insurance companies run the judicial system. Is that much different than the current state of affairs? We dish out rubber-stamp justice on a daily basis. Arbitration, summary disposition, and various other tort reform mechanisms process cases, and deny justice, all the time.

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