Torts, Juries, and Economics

The jury is the one institution in government that cannot be bribed or intimidated.  Snobs and business executives to the contrary notwithstanding, it is the feature of American government that is least vulnerable to the criticism that it is ill-designed.   Because of the tradition of civil jury trial, the courthouses of America are perceived to be institutions of democratic government.  That is true in no other country.  And given the frailties of the other branches of our governments and the complexities of our society, we have the greatest need from such reassurance.

Juries are seldom been used in civil cases involving disputes between business parties.  Their most important political role has been in tort claims by individuals against institutions.  At least since the antitrust law was enacted in 1887, private parties have been relied upon to enforce a wide range of public laws regulating business in such diverse fields as consumer protection, worker safety, civil rights, securities regulation, and environmental law. The American Tradition of Private Law Enforcement.

Since the 1980s, there has been a movement to impede private law enforcement, reduce the role of juries, and “reform” the law of torts.  This initiative is driven by business interests and is characterized by many false representations regarding the alleged evils of the system.  There are, to be sure, serious flaws in the system as manifested most visibly in its inability to deal with the asbestos problem.  Asbestos LessonsAn aggravation of its flaws is the inability of the nation to deal with the cost of health care as Canada, Japan, and many nations in Europe have.

One source of the energy in this "reform" movement has been the intellectual movement styled as law-and-economics.  Its leaders have tended to celebrate markets, freedom of contract, and the wisdom of Adam Smith’s Wealth of Nations.  Their words are a reprise to similar thinking advanced a century earlier by those then styled as Social Darwinists.

The movement is stimulated in part by internationalization and the growth of the global economy, a development putting pressures on all systems for regulating commerce to protect consumers, investors, workers, and the environment.  Corporate America complains that it is weakened by American tort law, by damages awards made by juries, and by the cost of the legal system.  They seldom notice that in other “advanced” nations, they bear similar burdens imposed through heavier taxation (including taxes to pay for single-payer health care) and administrative regulation.

The movement is also, I perceive, stimulated by the collapse of Marxism leaving the law-and-economics ideology without a direct ideological opponent.  As a result, Corporate America is less and less concerned about the conditions in which its workers and consumers live.  Forgotten is the other powerful insight expressed by Adam Smith in his Theory of Moral Sentiment, that people cannot be expected to take a strong interest in the welfare of people distant from themselves.  Executives will take whatever they can from those whom they do not personally see and know.  This was the teaching of the Johnstown Flood in 1895 and of the Enron Collapse of 2001. 

It is my perception that the tort reform movement threatens the stability of American society by diminishing the power of the middle class to protect its members from business decisions giving too little account to their interests.  Tort law and the civil jury is what we have to keep big business reasonably honest.  I have therefore aligned myself with the trial lawyers organizations who somewhat pretentiously, but not without reason, pass themselves off as lawyers “for the people.”  In recent years, I have served on the legislative committee of the North Carolina Academy of Trial Lawyers.  And in the same spirit, I am serving on the Advocacy Council of the American Association of Retired Persons.  I have also engaged in efforts to prevent the misuse of standard form contracts to disable workers and consumers from their ability to enforce their legal rights.  Contracts and Arbitration.

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My writings on law-and-economics and on tort reform are:

Book Review, Posner, Law and Economics, 1974 U. ILL. L. F. 187

Adjudication as a Private Good - A Comment, 8 J. Leg. St. 303 (1979)

Trial by Jury, in 4 Ency. of the American Constitution (McMillan 1986) (Levy, Karst & Mahoney, eds.)

Trial by Jury in Civil Litigation: An American Idiosyncracy, in United States/Japan Commercial Law and Trade (Kusuda-Smick ed. 1990)

The Civil Jury at 199: Reflections on a Forthcoming Bicentennial, 1990 U. Chi. L. F. 1

Law and Economics in the Creation of Federal Administrative Law: Thomas Cooley, Village Elder to the Republic, 83 Iowa L. Rev. 363 (1997)

The New Social Darwinism, 1 Green Bag 2d 235 (1998)

The American Tradition of Private Law Enforcement, in Bitburger Gespräche Jahrbuch 2003

Asbestos and Court Delay in the United States, in The Law’s Delay: Essays on Undue Delay in Civil Litigation, von Rhee ed., Institute for Transnational Legal Research, Maastricht 2004)

Democracy at the American Courthouse: Distinctive Features of American Legal
Institutions" der Tagespiegel, October 22 2003, republished at Humboldt University Law Forum, (Berlin 2004).

The Civil Jury and American Democracy, 13 Duke J. Comp & Intl L.  79 (2003)

Harmonization of Civil Procedure in Diverse American Jurisdictions, in Discretionaire Bevoegheid van de Rechter: Grenzen en Controle (M. Storme & B. Hess eds. Maastricht 2004)

Asbestos Lessons, to be published in Review of Litigation (2007)

Law and Transnational Corruption: Globalizing Lincoln’s Law, to be published in L&CP (2007)