David Logan, ‘Judges, Juries, and the Politics of Tort Reform’

The civil justice system has many repeat players who have deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of ‘tort reform’. These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.

This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally ‘get it right’.

Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be ‘captured’ by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.

The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.

Logan, David Andrew, Judges, Juries, and the Politics of Tort Reform (August 31, 2015). University of Cincinnati Law Review, Vol 83, p 903, 2015; Roger Williams Univ Legal Studies Paper No 163.

First posted 2015-09-02 12:07:48

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