Andrew Cochran keeps a blog dedicated to the 7th Amendment — the amendment guaranteeing US citizens the right to a jury trial in civil cases. Earlier this month, he had a post quoting Judson Phillips, a leader of the Tea Party movement.
It seems that Mr. Phillips understands the role of the civil justice system in deterring bad behavior. He writes:
The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.
The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.
If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.
Too few people recognize the importance of the tort system — civil lawsuits — in deterring bad behavior. A few years ago, the Texas Supreme Court (all Republicans, by the way) explained that important role in the case of Roberts v. Williamson:
The fundamental purposes of our tort system are to deter wrongful conduct, shift losses to responsible parties, and fairly compensate deserving victims.
I have never understood why so many conservatives — hell bent on making society safer by strictly enforcing criminal laws — want to eliminate the civil justice system, which is just as important in deterrence of wrongful conduct as the criminal system.
In fact, in many cases, the civil justice system may be a more important deterrent. For example, routine car wrecks don’t often involve a criminal component, and if they do, it’s usually just a minor ticket. They don’t really deter wrongful conduct. On the other hand, the prospects of facing a huge verdict from reckless driving — that might deter wrongful action.
I don’t know whether the tea party will be enough to change the debate on this issue, but I’m at least thankful that the issue is becoming a source of some discussion.
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