Bill Long 11/19/04
With Gratitude to Kurt Barker
The language of "tort reform" is in the air. President Bush has made it, if not a cornerstone, then at least a significant part of his domestic agenda for his second term. My home state of Oregon just narrowly voted down a cap on damages by initiative petition in the November election. And, conservative pundit George Will joined in the ritual trashing of trial lawyers in a recent speech at Willamette University in Salem, OR in speaking for "tort reform."
But when you scrape the surface of "tort reform" you see that it is really a frontal attack on the central institution of the American legal system, the jury, under the guise of some kind of warm-fuzzy "reform" that American society supposedly longs for. As a result of this (mis)characterization, the real "villains" in American life are trial lawyers rather than the juries that give people the awards. Even though trial lawyers may be very persuasive or powerful people, they don't give awards--at least the last time I checked. Thus, the issue of "tort reform" becomes an interesting case study in how language is manipulated in our political culture today by those who want to protect and further their own economic interests.
Putting the Issue Into Perspective
The State of Oregon, to take one example, faced a "trial crisis" about 100 years ago. The problem in that instance was that judges were famous for taking the jury verdict as only "advisory" and would frequently and without qualms reverse a jury determination. As a result, Oregonians took matters into their own hands in 1910. Making use of the fairly new device of the initiative petition, brought into Oreogn at the beginning of the 20th century, the people passed a massive amendment to the Judicial Department article (Article 7) of the Oregon Constitution. One provision of that amendment reads as follows. "In actions of law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved,
and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict (Article 7 (Amended), Section 3).
In other words, about a century ago, the value that Oregonians wanted to affirm above all in the judicial process was the sacredness of the jury verdict. "No fact" considered by a jury shall be reexamined unless there is "no evidence" to support it. A more ringing endorsement of the role and value of a jury can hardly be imagined.
Returning to 2004
But juries are susceptible to emotional pleas. They sometimes sympathize with defendants who have been horribly injured; they sometimes (though rarely) award dramatically huge amounts to plaintiffs where the callousness of defendants is evident. Juries have a history of not liking to be considered dumb or irrelevant or little people or insignificant players in the workings of justice. So, they speak.
And twelve "little people" can get the attention of large companies, companies which have a lot of money and bear lots of influence. Juries are notoriously hard to buy off; it is far cheaper and more efficient to purchase "access" to a Senator or Congressperson. In short juries are the constitutionally-provided institution that can't easily be eliminated.
But that is where we return to "tort reform." If the institutions and individuals favoring "tort reform" were really to call it what it is--undermining of the jury system in order to limit damage exposure in all instances--they wouldn't have a ghost of a chance of bringing about their "reforms." As we used to say in Kansas, that would happen when "hell turns Methodist." A frontal attack on the jury system will simply not work.
Thus, language comes to the rescue. America is now, as it probably always has been, ruled by cliches, by shibboleths uttered by people whose financial stake in the shibboleth is often staggering. Indeed, many of the shibboleths crumble as soon as they are exposed to the most elementary scrutiny. But America can only survive in its present form if people do not probe too deeply behind the realities of language because if we did so, not only "tort reform" but also many other societal sacred cows would be exposed for the flimsy things they are (See my essay on tax simplification).
We need an electorate who is kept from thinking about the words that are used to describe life lest they begin to raise the kinds of questions that may eventually hurt the bottom line of American companies. If there is seemingly one thing we all agree on in late 2004 it is that corporate bottom lines ought not to be touched. That, and the Eucharist, are sacred things.
But all we need are a few questioners in America today. They will be ignored, in the first instance, and even in the second instance. Then they will be ridiculed, attacked, ritually abused verbally and finally, when all is said and done, listened to. Maybe we can start the debate on "tort reform" by calling it by its proper name--jury nullification.
Copyright © 2004-2007 William R. Long