Matt Campbell Knows Better

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Earlier this week, I spoke on tort reform to the State Agencies committee of the Arkansas General Assembly; yesterday, I noticed an Internet polemic from Matt Campbell on the same subject. His piece is filled with misfires, but I want to focus on one in particular: Campbell argues that anything other than complete obeisance to all jury verdicts is “nothing more than a direct assault” on the state Constitution and the Seventh Amendment. Here, Campbell is flatly wrong.
Campbell’s argument, regrettably, provides a textbook case of Alexander Pope’s famous maxim: namely, a little learning is a dangerous thing. Many law students come into school burdened with fantastic misunderstandings of the Constitution, but they’ve usually shaken them off by the time they graduate. Eventually, after they study this stuff for a while, law students come to understand that the First Amendment’s guarantees of freedom of speech and assembly do not actually convey a right to slander others or a right to participate in an imminently violent mob. The Second Amendment’s right to bear arms does not protect the right to private ownership of nuclear bombs. And so on. (A few lines of dialogue from “A Fish Called Wanda” come to mind here.) All constitutional rights have boundaries, and those boundaries are set by history, by common law, and by everyone’s interest in societal peace.
Again: this is just obvious to anybody who thinks about this stuff and who is familiar with how law actually works. It’s probably even obvious to Matt Campbell on his better days. Regrettably, though, it isn’t obvious to the Matt Campbell who insists that anything besides universal jury sovereignty upends the state and federal Constitution. My suspicion, though, is that on further consideration, Matt Campbell knows better.
In fact, laws limiting jury awards of non-measurable (more typically called non-economic) damages are currently in force in about two-thirds of the states. Now I guess it’s possible that all the lawyers and all the judges in those states are just not as sharp as Matt Campbell, and so they don’t realize how obviously unconstitutional such laws are. But I think we have to consider more likely possibilities as well, and in particular the possibility that Matt Campbell just didn’t think very much about what he wrote.
Similarly, anybody with more than a passing acquaintance with this stuff knows that judges occasionally (and quite legally and constitutionally) reduce jury awards. This is called remittitur. A trial court used remittitur in a semi-famous way in the case of Capitol v. Thomas-Rassett, in which Ms. Thomas-Rassett was tried for illegally downloading and distributing 24 music files. She ultimately had to undergo three separate civil trials for her actions, for which juries attempted to penalize her $222,000, $1.92 million, and $1.5 million respectively. The trial judge repeatedly attempted to alter the jury verdict by capping Ms. Thomas-Rassett’s liability at $54,000; the appellate court wouldn’t let the trial judge set the figure that low, but ultimately determined that appropriate damages were $222,000.
When judges reduce gigantic jury verdicts, this is entirely consistent with a strong Seventh Amendment right to a jury trial. A strong right isn’t an unlimited right; even strong constitutional rights have exceptions and boundaries. The theory of a constitutional balance of powers implies that everybody – even judges and juries – face certain constraints. Judges and legislators are entirely within their rights to constrain runaway juries; the Seventh Amendment doesn’t place judges or juries beyond the law.
I’m not going to go into great length here about the policy justifications of tort reform. I do think tort reform is likely to make Arkansas citizens healthier and wealthier, but that’s for another day and another post. (Although I will say that the policy arguments that Matt Campbell makes against tort reform in Arkansas are hilariously bad; for instance, he explains that tort reform is unnecessary because, on a national level, the number of lawsuits is dropping and the number of doctors is increasing! Think for a moment about how relevant these aggregate national-level statistics are to a debate about tort reform in a single state, which of course competes with other states in an effort to provide a favorable climate to its residents. People who pay attention to this stuff know that there is wide and continuing variation in the doctor-patient ratio across the 50 states. National-level statistics are relevant to some debates, but the facts that Matt provides seem almost entirely irrelevant to this one.)
Don’t get me wrong. I’ve read Matt Campbell’s blog before, and sometimes it contains valuable work and analysis. Not this time, though. My diagnosis here is that Matt Campbell has every political right to oppose tort reform, but that he’s throwing a bunch of phrases about the Constitution against the wall to support his view. He’s neither the first person nor the last to do that sort of thing, but it’s a disreputable practice, because those phrases don’t add up to anything resembling a serious legal argument.
We all have the right and the duty to learn about, and to discuss, the role of the Constitution in our governance and in our lives. But practicing lawyers have a special duty: what they say about the Constitution should be, at a minimum, consistent with reality. Matt Campbell has failed that test. He knows better.

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