Advocates sometimes demonstrate a myopic view of the world — especially when they are confronted with a proposal they don’t like. In such cases, they make apocalyptic predictions about how that policy will cause death and destruction. What they hope spectators don’t notice is that such dire predictions are regularly undercut by the fact that the same policy is in place in numerous other states — and, in those other places, the policy works just fine.
Today in Arkansas, that is the case for tort reform. When it comes to attempting to fix problems with the state’s civil justice system, Arkansas is hardly a pioneer. Many other states have adopted tort reform, and the sky hasn’t fallen anywhere.
However, some Arkansas attorneys have apparently decided that this evidence is inadmissible. My first exhibit is Denise Hoggard, President of the Arkansas Bar Association. In an e-mail to members, she indicts tort reform legislation — complaining about the supposedly novel idea of giving the legislature power to set some rules for the judiciary. Calling the proposal a “threat to the entire justice system,” and saying that it “threatens our impartial courts,” Hoggard charges that legislators want to “usurp” the judiciary.
Scary stuff, huh?
Well, it might be scary if there were any reason to believe it. In reality, legislatures in more than half the states already have some power to set rules for the judicial branch. (The link is based on a 2008 survey, but I don’t think things have changed much since.) The extent of legislative powers in the different states vary, but there is no evidence that this legislative control is a “threat” to an impartial judiciary in those states.
In fact, Arkansas has experience with the legislature being able to set rules for the courts. Before Amendment 80 to Arkansas’s constitution went into effect in 2001, the state legislature controlled judicial rulemaking. Was the rule of law in Arkansas in danger before then? Hardly. In fact, before 2001, Arkansas was in the mainstream with respect to legislative authority over judicial rulemaking.
It is difficult to see how anyone could say with a straight face that the tort reform proposal the legislature is considering is extreme. Statistically, the ABA is just wrong: in fact, Arkansas is an outlier when it comes to allowing the judiciary sole control of its rulemaking. The majority of other states allow for legislative involvement in this area. That makes sense, because the legislature — not the state Supreme Court — is the policy branch of state government. It is the legislature that appropriately writes general rules, and it is the courts which appropriately decide concrete cases.
Hoggard also claims that this proposal would threaten due process of the law (apparently in a manner which is so sinister that she is incapable of describing it). The federal Constitution protects due process, so any states that allow the legislature a role in judicial rulemaking would have already faced challenges under the federal Constitution to overturn that system. For some mysterious reason, this has never happened.
Another baseless charge made by Hoggard is that this proposal would inappropriately interfere with the power of the jury. As we have discussed elsewhere, juries do not have unfettered power to decide whatever they want. They must follow the law. Judges already give instructions to juries in every case, and those jury instructions limit juries’ discretion. In a state and country whose constitutions emphasize that every unit of government has limited powers, it is disquieting to see a lawyer argue that the power of a jury is supposed to be limitless.
Why is this issue of “who makes the rules” so important? In fact, legal reforms will almost certainly never take place in Arkansas under the current regime of absolute judicial control over rulemaking. If you want loser-pays reform or class-action reform — or even if you just want to make sure that Arkansas’s current legal reforms are constitutional (under Amendment 80, some aren’t) — you have to allow the legislature some control over policymaking. Legislatures are better at these kinds of judgments than courts: a legislature provides an open forum for all parties to contribute, unlike a cloistered panel composed of a few judges that is institutionally ill-equipped to make broad, general policy decisions. Of course there are all kinds of reasons that people might want the status quo (that is, unfettered control by the Supreme Court). Some of those reasons are not good.
I appreciate the demands of Denise Hoggard’s role. It is the job of lawyers to sway juries or judges to their way of thinking. As far as I can tell, this is what Hoggard is trying to do in the debate over tort reform. But there is no job requirement to use hilariously hyperbolic or substance-free arguments: other states have adopted similar proposals; nonetheless, the disasters that Hoggard has predicted have never occurred.
I called Denise Hoggard to ask her to clarify her statements about tort reform, and I will certainly update this post if she returns my call, but as of now it’s my opinion that she is carrying out a talking-points campaign against tort reform — and her talking points misfire. There is no reason to give any credence to the fear, uncertainty, and doubt that is being promoted by the Arkansas Bar Association — and the trial lawyers who are fighting to maintain the legal rules that benefit them to the detriment of the people of Arkansas.