OPINION

The Dwindling Civil Jury

Recent Supreme Court decisions on arbitration, pleading standards, class actions and punitive damages restrict this institution in its constitutionally intended political function.

, The National Law Journal

   | 6 Comments

Recent Supreme Court decisions on arbitration, pleading standards, class actions and punitive damages restrict this institution in its constitutionally intended political function.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Continue to Lexis Advance®

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

What's being said

  • COMMERCIALLIENS

    Civil juries will be extremely busy from now on,,,,all the comm'l liens against you anti-constitutional seditionists will be the start of a new freedom revolution...JOY BELLS

  • EsquirePukes

    Godless freakshows

  • USCt are FRAUDS

    DUMP USA INC, return to the Constitutional Republic usA. Where Citizens are free 4th amendment based , not 14th am slave/citizens of USA INC. 4th of July CELEBRATE WHAT FREEDOM? slaves of England after the liars/lawyers f'd things up, see the act of 1871, etc etc......

  • Darren McKinney, American Tort Reform Association, Washington, D.C.

    Yes, Mr. Goldner, there are white papers on the subject, some even written by your allies among the parasitic plaintiffs' bar. But they can't begin to overcome in the minds of laymen and women the nearly daily headlines about shameless self-dealing -- including but not limited to no-injury class actions and coupon settlements, choreographed slip-and-falls and car wrecks, fraudulent asbestos claims, and the bribing of judges -- made infamous by the likes of plaintiffs' bar hall of famers Dickie Scruggs, Mel Weiss and Bill Lerach, among others.

    If, as Senator Whitehouse purports, the right to a jury trial is today being squeezed, then all the personal injury lawyers who've seen fit to manipulate, abuse and defraud the civil justice system while seeking to get rich beyond their wildest dreams at the expense of consumers and taxpayers must share the blame. Because surely The Founders, who authored the Seventh Amendment, could not have foreseen, in their wildest dreams, what has become of your profession. They would be scandalized and ashamed of the selfish burden too many of your colleagues choose to impose on our commerce and individual freedoms. And, judging from public approval surveys that typically rank personal injury lawyers lower than members of Congress and used car salesmen, most modern Americans agree.

  • Harold M. Goldner, Esquire

    And lo and behold from whom do we hear but the American Tort Reform Association on the sanctity of the 7th amendment right to trial by jury? That's right, a shill for the casualty insurance industry pipes up with more misinformation. I'm disappointed that you forgot to haul out the myth of the McDonald's Coffee verdict.

    Anyone genuinely interested in the attack on the right to trial by jury can look elsewhere than anything put out by the ATRA for a genuinely thoughtful discussion of the subject matter. There are any number of white papers on the subject and a handful of law review articles as well.

  • Darren McKinney, American Tort Reform Association, Washington, D.C.

    As a politically ambitious former Rhode Island attorney general, Senator Whitehouse was perhaps best known for letting out-of-state personal injury lawyers sue on behalf of his state several paint and chemical companies, alleging that they -- and not property owners and managers -- were responsible for the health risks posed to children by pealing lead paint. Never mind that none of the deep-pocket defendant companies had made lead paint in decades; and never mind that the case was impossible to prove under standard products liability law, because AG Whitehouse and his generous campaign contributors at Motley Rice pursued the case instead under public nuisance law, with a much lower standard of proof and a then-novel “market share” theory of liability. But for all the chutzpah it entailed, their pay-to-play litigation scheme still came to naught after nearly nine years when the Rhode Island Supreme Court overturned a trial judge who may as well have been in on it from the get-go.

    This lead paint scheme is but one of thousands that the nation’s litigation industry has ginned up in recent decades, at great cost to economic growth, job creation, consumers' wallets and the public’s respect for the rule of law. So thank goodness for the SCOTUS's recent willingness to rein in this pernicious and parasitic industry, on which Senator Whitehouse and many of his congressional colleagues so desperately depend for political funding.

    To Senator Whitehouse’s particulars: Arbitration generally works well for consumers but leaves trial lawyers out in the cold, so he and Senator Al Franken periodically push anti-arbitration bills to keep their donors happy. (BTW, just how the heck can a simple arbitration clause in a consumer contract be deemed "unconscionable" unless a consumer literally had a gun held to her head and was forced to sign it?) And does the senator mean to suggest plaintiffs should be allowed to file “implausible” complaints, since defendant companies presumably have nothing better to do than spend time and money defending against them? Such a perspective would be consistent with the senator’s apparent belief that entrepreneurial plaintiffs' lawyers should be able to cut-and-paste together gigantic, literally indefensible class actions just so they can then extort millions or billions of dollars from defendant companies, and forget about Due Process. Finally, in addressing wildly capricious awards for punitive damages, the senator speaks of predictability in our courts as though it were something to disdain -- as though the capacity of our private sector economy to plan, compete globally and create jobs here at home doesn't depend in no small measure on an equitable court system that's based on a largely predictable adjudication of the law.

    In any case, it's hard to remember the last time the National Law Journal published such a transparently self-serving op-ed that sought to wrap itself so tightly in constitutional platitudes. But rather than blame the SCOTUS for what he purports to be an erosion of American juries’ influence, Senator Whitehouse would do well to look in the mirror and recall all that he and his plaintiffs’ bar colleagues have done to mislead juries and otherwise corrupt our civil justice system for their own selfish gain.

Comments are not moderated. To report offensive comments, click here.

Preparing comment abuse report for Article #1202603160322

Thank you!

This article's comments will be reviewed.