April 2010 Archives

Tort Reforms That Undermine Right to Trial by Jury

Ask Legislators to Violate Their Oath of Office

TRIAL BY JURY in suits at common law is a right that "shall be preserved" according to Article VII of the Constitution of the United States. The Constitution of the Commonwealth of Virginia states that "in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred." Article VIII, Section 11.

In taking their oath of office, the President of the United States, U.S. Senators and Congressman, and the Governor, officers and legislators in the Commonwealth of Virginia swear or affirm to defend the Constitution of the United States.

Men should be good neighbors to each other but the Constitution recognizes that when they are not, the right to trial by jury shall be preserved as the way to achieve a just resolution of their disputes. The oaths taken by our leaders as a prerequisite to holding office are oaths to uphold the Constitution and, thereby, uphold the right to trial by jury. This recognizes that the touchstone of law and power in the United States is the Constitution. Not the flag. Not the Oval Office. Not the Capitol. Not Wall Street.

Businesses should be good neighbors too, but while the rule "do unto others" may guide the conduct of individuals, the rule "maximize the bottom line" more often guides the conduct of businesses. Financial fraud, price fixing, price gouging, cutting corners, dumping toxic waste, making motor vehicles that attract buyers but catch fire on their own or easily roll over, and selling drugs, toys and other products that poison, maim and kill - all these add to the bottom line - as long as lawsuits don't get in the way. "Tort reform" is all about protecting that bottom line and doing away with lawsuits. It has nothing to do with making motor vehicles and other products safer, drugs safer, patients safer. Trial by jury is the remedy under the Constitution for holding wrongdoers accountable for not being good neighbors.

When the U. S. Chamber of Commerce, its Institute for Legal Reform, and corporations, interest groups, lobbyists and politicians talk about the need for "tort reform," they are asking legislators to chip away at our Constitutional right to trial by jury to hold corporations accountable.

If we saw these companies and industries on the playground when we were kids, we'd say they were bullies, wanting to push people around without having to answer to anyone.

Tort Reform is a one way street. Its goal is the elimination of the checks and balances on corporate power that trial by jury preserves by putting power into the hands of the people of the United States.

Legislators putting caps on the amount of damages that juries can award for medical malpractice claims, punitive damages, pain and suffering; creating rules that make it harder for people to prove their cases and get their cases before a jury; legislatures granting privileges and immunities from liability of one kind and another; allowing defendants to force plaintiffs to arbitrate a claim instead of going before a jury - the tools for taking away the right to trial by jury are many and devious. At times you need a Sherlock Holmes to sift through all the cries of alarm, the justifications and the deceptions to see that what they are really doing is taking a bit here, a bit there, until they have stolen from us this golden tool entrusted to us by our Founding Fathers for preserving a just society for generations of Americans yet to come. Our elected representatives have taken an oath to defend the Constitution. When it comes to tort reforms that undermine trial by jury, they should just say no.

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Presidential Oath - "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the Unites States, and will, to the best of my ability, preserve and defend the Constitution of the Unites States."

U. S. Senate and Congress - "I do solemnly swear (or affirm) that I will support and defend the Constitution of the Unites States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Commonwealth of Virginia - "I do solemnly swear (or affirm) that I will support the Constitution of the Unites States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as _________ (office) according to the best of my ability (so help me God)." Virginia Constitution, Article II, Section 7.