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.

So, the government isn’t supposed to make laws restricting the peoples’ ability to bring a lawsuit, right?

At least that’s my take. No, I’m not a constitutional scholar. But I do think that I can read English. While I welcome discussion on the point, my view is that the government isn’t supposed to limit our ability to “have our day in court.”

A discussion of the Constitutionality of tort reform is one of those issues that polarizes our society. Thanks to its other First Amendment buddy (the press), the freedom to petition the government for redress immediately brings to mind thoughts of frivolous lawsuits, alleged judicial hellholes, and the effect they have on business and health care costs.

At a conference conducted by The American Constitution Society (ACS), Judge Robert Pratt provided some excellent insight into the root causes of the current crisis in the judicial system.

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.

This is key insight. There are a couple parts of these statements that are particularly alarming. First, he recognizes that many tort reformers do in fact seek to eliminate some of our rights and remedies. These are the rights and remedies that seem to be expressly guaranteed by the First Amendment. Secondly, in areas where tort reform has been rooted for many years, it hasn’t accomplished the goals it was purported to accomplish.

The problem of frivolous lawsuits has been debated, discussed, and leveraged as a political tool for many years. The promise of reduced health insurance premiums, and a stronger economy, from tort reform measures has been a large part of many political campaigns. We should not be surprised that the glory of tort reform is frequently espoused from the very individuals (and corporations) that stand to benefit from these protectionist policies.

The truth is that the number of jury trials in the United States decreases every year. Many judges believe that docket management is now the most important part of their job. This is the very essence of the problem. Yes, even judges are convinced that more jury trials means the system isn’t working. But wasn’t the right to a jury trial the very core of what makes our system work?

That is not to say that I am unsympathetic to the problems faced by an overworked judiciary. The judicial system should command a larger portion of the national budget. Certainly the judicial system is something from which all citizens benefit. However, what concerns me are those citizens that are victims of this “assembly-line” justice.

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.