Civil Justice in a Free-Market Society
By Ed Vopal, President
Wisconsin Association for Justice
In the past 15 months, the Wisconsin legislature has been passing legislation affecting the civil justice system. The sponsors of the legislation have repeatedly claimed that these changes were made to improve the business climate. Some of these new laws, however, alter the goals of a free-market system.
A frequent conservative-minded principle is the stated belief in a free-market economy. One of the many benefits of a free-market system is the ability to achieve financial success by creating, producing, marketing, selling and servicing products and goods to the public. The free-market system is designed to reward good businesses and deter bad ones. Achieving financial success in the marketplace also means weighing costs against profits. One of the detriments of a free-market system concerns the decisions to maximize profit at the expense of other important considerations, like safety and durability.
Judson Phillips, founder of Tea Party Nation, writes about the interplay of the free-market system and civil justice. "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 7th 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."
In other words, the free market system must have as a core belief the absolute ability of consumers and the general public to have a strong civil justice system and access to the courts to enforce rights, deter bad behavior and compensate injured people.
The goals of a true free-market system include minimizing government intervention and regulation. A healthy civil justice system, which allows consumers to assert their rights when wronged, assists a free-market economy by allowing a check on manufacturers and producers, deterring producers of faulty goods, products and services, shifting losses for economic damage and the costs associated with personal losses to the responsible parties, and providing a civil recourse and remedies for all interested parties.
Judson Philips writes, "Our founding fathers understood how well the free market worked. The free market is a fundamental part of liberty and freedom. To encroach on them through "tort reform" is an abuse of the Commerce Clause of the Constitution and clearly runs afoul of both the 7th and 10th Amendments to the Constitution."
"Tort reform," through legislative actions, disrupts the free flow of commerce by placing limits on civil actions, creating immunities from civil enforcement of rights, and establishing special privileges to segments of the population or entire industries. By limiting the public's access to the civil justice system, the free-market system is similarly disrupted. The effect is to lessen a persons or company's duty to act reasonably and safely. Ultimately, the consumer loses.
American citizens have to either embrace or reject the free-market ideals of our founding fathers. They believed, like I do, it is better to have a court and fellow citizens resolve civil disputes rather than accepting a predetermined outcome that sets limits on civil actions, caps damages or gives a business or industry complete immunity from claims.
Edward J. Vopal is president of the Wisconsin Association for Justice, and a shareholder at Habush, Habush & Rottier, in Green Bay.
To learn more about the 7th Amendment, check out the website, The 7th Amendment Advocate, which educates the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits, the accelerating erosion of our 7th Amendment rights, and current issues illustrating the problem and need for restoration of the Founders' original intent.