THE BLOG
01/21/2015 05:30 pm ET Updated Mar 23, 2015

Respecting the Seventh Amendment

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There are few democratic institutions in America more embattled than the civil justice system. No matter what one thinks of "tort reform," the political term often used to describe laws to weaken this system, one thing is clear: For the last 35 years, questions about the future of civil juries have been dumped on the plate of Congress and every statehouse in America. Many legislatures have been pressured to undermine the civil jury system by restricting access to the courts and limiting juries' power and authority. We are seeing more proposals to limit the right to jury trial than ever before.

If the framers of our Constitution were alive today, they would be appalled by this development. Our nations' founders considered the right to trial by jury in civil cases to be one of our most important rights. In virtually every major document and speech delivered before the Revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. The right to civil jury trial was a key issue over which the American Revolution was fought. It was so essential to our nation's founders that they preserved it directly in the Bill or Rights as the 7th Amendment. In a 1979 case, U.S. Supreme Court Justice William Rehnquist explained:

[T]hose who oppose the use of juries in civil trials seem to ignore [that] the founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.

A chief function of the jury system is to provide a check on official or arbitrary power. It was the colonists' experience that the civil jury system could be vulnerable to political attacks by those in power. The framers could hardly have imagined that such attacks would still be a problem 223 years after the Amendment was ratified. Unfortunately, many lawmakers in recent times have allowed the civil jury system to be weakened or, in some cases, completely shattered.

Consider all the ways this has happened. Many states have enacted "caps on damages," or limits on compensation to injured victims after they have won their case. The determination of damages is one of the jury's most important functions. As the Georgia Supreme Court said in its 2010 decision striking down caps in that state, "the determination of damages rests 'peculiarly within the province of the jury.'" Caps undermine a jury's fundamental purpose. Even worse, they transfer the jury's job to cash-greased politicians, who force courts to apply "one-size-fits-all" limits irrespective of the evidence that a jury sees.

Another much sneakier way that people are losing access to the civil jury system is by making it impossible for injured people to access counsel. The contingency fee system (where attorneys take cases without charging anything up front and are paid only if they win), provides anyone with a legitimate injury case, regardless of their financial means, with access to an attorney.

But some legislatures have enacted government-imposed schedules or "caps" on contingency fees, which ultimately make it impossible for attorneys to afford to take cases. And, now, some lobbyists have started pushing "The English Rule," so if an injured person sues General Motors and the company beats her in court, she would have to pay all of GM's legal bills. This rule was concocted by the upper classes in England in order to curtail access to courts by everyday people. They knew perfectly well that it would so increase the financial risk of bringing a lawsuit that only the wealthy would ever use the courts. Our "American Rule," which "took root in colonial America and matured during the nineteenth century," has always rejected such chilling of 7th Amendment rights. As one scholar has written: "The American acceptance of ideas about easy access and the value of counsel were signaled on the civil side by the resounding rejection," of the English Rule. It has no business here.

There are also a number of ways lawmakers have proposed getting rid of civil juries altogether. "Preemption" of state "tort" laws, inserted into federal bills, would prevent wrongly injured people from filing civil suits. Other proposals would require or pressure individuals to resolve their disputes in biased systems outside the courts, with no juries allowed. Forced arbitration clauses in contracts between corporations and everyday Americans, and health courts, which would abolish juries in all medical malpractice cases, are just two of many examples. History is clear that once an area of law is removed from the civil justice system, it is immediately and forever vulnerable to manipulation by political forces -- the very problem the 7th Amendment was supposed to prevent.

The need to protect the 7th Amendment is as critical today as it was in the 18th Century. This isn't a left or right issue, a liberal or conservative issue, or a Republican or Democrat issue. This is an American issue. Civil juries are fundamental to our democracy and to our national history. Lawmakers must stop squandering this incredible gift from our nation's founders and work together to protect the right to civil jury trial for all Americans.