I am a Conservative
Therefore, I oppose tort reform!
Thoughts from a Debate Revisited
By Brian Brooks
In July of 2014, the Little Rock Chapter of the Federalist Society contacted ATLA and asked someone from ATLA to debate “tort reform” with someone from The Manhattan Institute. Another typical debate over “tort reform” was a tiresome thought, so it was proposed, and eventually decided, that the debate would take an unconventional term. The debaters would discuss the merits and demerits of tort reform from the standpoint of conservative thought. Stated another way, the theme of the debate was whether “tort reform,” as it is typically understood, is consistent with or antithetical to conservative principles and values.
The debate was held at the State Capitol. Mr. James Copland ably represented The Manhattan Institute. I was honored to be chosen to represent ATLA. My remarks were reduced to an article published in the Docket’s 2015 Winter edition, which I will refer to as the debate article.
With another legislative session approaching during which ideas of “tort reform” surely will come to the surface, it seems appropriate to revisit the thoughts expressed in the debate article. The text that follows uses the ideas expressed there as its core and expands on those thoughts. The conclusion is the same: because I am a conservative, I must oppose tort reform. “Tort Reform,” in fact, runs against traditional conservative values. Said another way, a true conservative would stand firmly against “tort reform” initiatives at the state and federal level.
Conservatism—What it is.
The words “conservative” and “conservatism” are bandied about somewhat carelessly in political conversation, but little time is spent understanding what they mean. Conservatism is a way of life and living, a set of values and convictions. It is not a political brand or expediency. It is taught, it is lived, and it is learned.
In his preface to his Ten Conservative Principles[i] delivered in a lecture to the Heritage Society in 1986, a work I find interesting and will return to from time to time, Russell Kirk explained, “there is no Model Conservative, and conservatism is the negation of ideology: it is a state of mind, a type of character, a way of looking at the civil social order. The attitude we call conservatism is a sustained body of sentiments, rather than a system of ideological dogmata.” Mr. Kirk went on to set forth that “A people’s historic continuity of experience, says the conservative, offers a guide to policy far better than the abstract designs of coffee-house philosophers.”
For this reason, I told you in the debate article that the foundation for who I am as a conservative was laid in my upbringing and in Sunday School class then continued in my formative adult years. How to treat others and the consequences for it was ingrained in me through my family and those influential in my life. Principles are taught to be lived. And I had great teachers.
This is the foundation for the point made here. The principles that inform “conservatism” are not political expediency or popular thought. They are a way of thinking and living. They define what is important and effective, not what is convenient or superficially appealing.
My Mission—What I do and do not do.
As was the case in the debate article, I wish to achieve a clear understanding of what it is I do, and what I do not do, here. I am not going to engage in the exercise of citing, quoting and trading studies and statistics about the effect, or lack of effect, on “you-name-the-variable” that results from tort reform. I leave that approach to other authors. Rather, the question I ask and answer is this: is the change in the law wise and correct and does it advance meaningful societal values? It is not whether one of its many effects is statistically good or bad. The tort reform question for the conservative, therefore, is whether a law that, for example, limits the damages parents of children killed in a bus wreck to some predetermined amount, is wise or correct policy choice for our society.
So, what I am going to do is back up my idea that tort reform is antithetical to conservative principles by doing these things. I will,
- Reiterate the six basic conservative principles from the debate article that I doubt anyone espousing to be a “conservative” will question;
- Again explain why our constitutional right to allow juries to decide civil cases is consistent with those principles;
- Reiterate what “tort reform” is;
- Explain why “tort reform” is inconsistent with those basic principles.
Six Basic Conservative Principles
So what are these basic conservative principles?
The first of these principles is that all life is precious, valuable, and deserves to be protected and treated with dignity. This value is at our conservative core and it is fundamental. When I say “all life” I mean “all life.” Conservatism does not countenance a valuation of one life over another. We do not tolerate or accept any notion of an elite class standing over all others that is worth more. “All life” must be treated with respect and dignity and protected whether that life be black or white, male or female, stay-at-home parent or corporate executive, Governor or garbage collector, in the cradle or in the nursing home, born or unborn.
This first principle is most often associated with the abortion debate, but it is much broader. Dignifying and respecting life certainly begins in the womb, but it does not end there. This principle means the conservative advocates law and policy that protects life at all stages, and abhors law and policy that either devalues life or endangers life and safety whether the life is fetal, adolescent, teenaged, adult or elderly.
The second principle is that the right to private property cannot be arbitrarily and unfairly interfered with. The right to hold private property is essential to individual freedom. Locke wrote that we hold as fundamental “life, liberty and property.” This phrase was the precursor to Jefferson’s “life, liberty and the pursuit of happiness” contained within the Declaration of Independence. The right to hold property without the arbitrary interference of government is fundamental to who we are. Why is this so? Returning to Mr. Kirk’s lecture, he set forth the principle that “freedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. … The more widespread is the possession of private property, the more stable and productive is a commonwealth.” Private property is essential to freedom.
The third principle holds that actors must be held accountable and responsible for their actions. Accountability is the key to promoting responsible human behavior and to protecting life, property and freedom. We hold people accountable for their actions in order to motivate them to act responsibly, so that the things we hold so valuable are protected. Absent accountability, we promote and condone irresponsible behavior. My father taught me this lesson when I threw a baseball through the back window while bouncing it off of the house as I was told not to do. I mowed yards to replace it. A corollary to this idea is that responsible actors are rewarded. Those who follow the rules, act safely, build better products, work harder, and do more are rewarded. At the same time, those who do not must compensate for the harm they cause.
The Conservative values law and policy that promotes responsibility and accountability. Law and policy that promote rewarding responsible actors are sought. Law and policy that limit personal, individual accountability and promote irresponsible behavior are opposed.
A fourth conservative principle says that rational economic actors act rationally and are motivated to act responsibly when held accountable. When we reward good behavior we get more of it. When we penalize bad behavior we get less of it. And vice versa. We all know that money is a motivator and that incentives impact behavior. Money, or its equivalent at the time, has long been used as a motivational tool. The Bible sets forth all manner of financial consequences for wrongful acts that are to be imposed on the wrongdoer. When behavior, good or bad, has consequences, behavior is motivated.
The fifth conservative principle opposes big government, and promotes local decision making closest to the people. The more local and close to the people government is, the more efficient, fair, and rational it is. Small government staying out of our lives spurs freedom and innovation. Large government is an inefficient deterrent. Thomas Jefferson noted, “The government closest to the people serves the people the best.” Mr. Kirk addressed this point in his principle that “conservatives uphold voluntary community, quite as they oppose involuntary collectivism.” He noted, “In a genuine community, the decisions most directly affecting the lives of citizens are made locally and voluntarily. … But, when these functions pass by default or usurpation to centralized authority, then community is in serious danger [and] … real government by the consent of the governed gives way to a standardizing process hostile to freedom and human dignity.”
The sixth principle is that adherence to constitutional principles found within the Bill of Rights and State constitutions is fundamental to our system of government and free society. Those principles ought not be interfered with or undermined. They all are on equal footing. No one is junior to another. Each must be valued and protected.
The Jury is Fundamental to Conservative Values
Each of these essential conservative principles, interestingly enough, is directly advanced by the concept of a jury deciding a civil case in a trial court. Think of what a jury is. Twelve people from the community associated with the event on trial come together to determine who is telling the truth, what happened and did not happen, and the consequences for the behavior found to exist. That activity directly involves all six of the principles a conservative holds dear.
The right to a jury trial in a civil case is, in fact, one of the enduring constitutional principles on which this nation is built. One of the rights specifically enumerated in the Bill of Rights is the Seventh Amendment right to trial by jury in civil cases and its corollary in state constitutions. This right is so fundamental that its deprivation was listed as a grievance against the King in justifying independence in the Declaration of Independence.
The jury is the essence of local control and small government. It is made up of citizens exercising their most fundamental right of citizenship. It not only allows, but depends on, public participation. It is not susceptible to corruption or political whim, but focuses only on doing justice in one case. And it instills in each citizen a degree of involvement in the judicial system those never living in a free society cannot understand. As Chief Justice Taft put it, “[t]he jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire. One of its greatest benefits is in the security it gives the people that they, as jurors, actual or possible, being part of the judicial system of the country, can prevent its arbitrary use or abuse.”[ii]
The jury is wholly and truly immune from elitism and special interest. The jury speaks with one voice regarding what is the acceptable community standard. It does not depend on the elite special interest, but on the facts and law of the case it is deciding.
The very essence of what a jury does is to hold actors responsible and accountable for their actions in terms of monetary reward. The jury imposes accountability and responsibility at its most core point, in a case where harm is inflicted. Please do not forget, however, that it is not just the plaintiff who benefits from this exercise. The vindicated defendant does as well.
Juries act in cases where life and dignity of life or ownership and control of property are at issue. Advancing these principles as it does, how can the jury be anything but fundamental to conservatism?
Tort Reform is Antithetical to these Conservative Values
And what exactly is “tort reform?” Plain and simple, it is the effort to undermine or eliminate the ability of a civil jury to determine just compensation for victims of tortious conduct, or to determine innocence for those accused of such conduct. It comes in four basic forms:
- Arbitrary predetermined Caps on damages an injured person may recover;
- Mandatory arbitration;
- Preemption by big government regulation;
- Procedural devices making it more difficult to get the merits of the case to the jury.
Unlike the jury trial, these tort reform efforts cut against the conservative ideas I’ve listed.
Caps on damages are a tort reform tactic that only works to devalue life and dignity while undercutting the community voice. An elite, special interest decision-maker decides ahead of time the compensation for a paralyzed mother who can no longer hug her children because someone else was careless. They reward irresponsible behavior by limiting the recovery, irrespective of the merits of the case and the harm caused.
Mandatory arbitration replaces the community voice with a hired person who is paid to listen to the case and decide it all within the quiet privacy of a hotel conference room rather than in the light of public view in a courtroom. Similarly, preemption allows the technocrat at a government agency to impose his or her will on us all by deeming a product that maims or kills “safe,” and beyond the civil law of the states. And what of these procedural gotchas? We hear the cry almost daily of the criminal defendant who escapes responsibility because of a technicality. Yet, some think it’s acceptable in the civil realm to allow hyper-technical gotchas to eliminate the constitutionally-vest community voice of the jury.
Clearly, each of these tort reform measures is directly at odds with the conservative values we cherish.
Final Thoughts—The Value of the Jury.
I closed the debate article with words our Founding Fathers spoke about the jury. Here I offer the words of another who jealously observed the importance of the jury when our nation was but an infant. The French Observer, Alexis DeTocqueville, wrote eloquently about the importance of juries in our system of justice:
My subject having led me to discuss the administration of justice in the United States, I shall not leave it without speaking of the jury. . . .
To regard the jury simply as a judicial institution would be taking a very narrow view of the matter, for great though its influence on the outcome of lawsuits is, its influence on the fate of society itself is much greater still. The jury is therefore above all a political institution, and it is from that point of view that it must always be judged. . . .
The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.
Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.
Juries teach men equity in practice. Each man, when judging his neighbor, thinks that he may be judged himself. That is especially true of juries in civil suits; hardly anyone is afraid that he will have to face a criminal trial, but anybody may have a lawsuit.
Juries teach each individual not to shirk responsibility for his own acts, and without that manly characteristic no political virtue is possible.
Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.
Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is [the jury system’s] greatest advantage. It should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.
I do not know whether a jury is useful to the litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.[iii]
DeTocqueville, like Justice Taft, understood that juries are essential and ought to be trusted. Those who blindly call today for “tort reform” do not.
Tort reform tactics replace the community voice with the elite, bureaucratic voice, which is antithetical to what our Founding Fathers intended. Think tanks, lobbyists, and technocrats in government agencies decide in advance what life is worth, what actions are right or wrong, and how behavior is to be checked, not peers within the community. They decide what is safe and unsafe, and what is acceptable and unacceptable irrespective of the will of the people. In no way does this align with conservatism. I know this because I am a conservative true to my conservative values, and therefore, I oppose tort reform.
[i] Google the title and you can find the text of the lecture in many places. It is on the Heritage Society’s site here: http://www.heritage.org/research/lecture/ten-conservative-principles.
[ii] Balzac v. Porto Rico, 258 U.S. 298, 310 (1922) (Taft, C.J., for the Court).
[iii]Alexis DeTocqueville, Democracy in America (eds. J. P. Mayer and Max Lerner, trans., George Lawrence, Harper & Row, 1966, pp. 249-53).