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State courts do the work federal courts can't - and shouldn't.

Ronald Reagan was right. It pains me to admit it, as our only commonality is that we are outside-the-Beltway guys who came late to an inside-the-Beltway life. But, as Reagan observed, there is an inside-the-Beltway mentality.

This Washington, D.C., mind-set has consequences not only for what trial lawyers do, but for how we live and, ultimately, for who we are.

A set of beliefs very popular in Washington has crept outward and is poisoning our legal system. Let me focus on three:

* The states are irrelevant; all that matters is what happens in Washington.

* The legislature is all-powerful; the judiciary and constitutional requirements are merely servants to legislative whim.

* Theory trumps experience.

The states don't matter. Lawyers know the important preemptive power of federal law, but consider this: Do you spend more time with your state's code or the U.S. code? With local law reporters or with federal law reporters?

The fact is, 97 percent of all lawsuits are resolved in state courts. The everyday work of the law does not happen in Washington. It happens in county courthouses across every state, where, day in and day out, lawyers and judges and juries resolve the real problems of real people.

Tort law, the kind of law most trial lawyers practice, has always been state law. Primarily, it still is, at least for now. This is so for a reason: The framers of the Constitution, versed in common law, spent huge amounts of energy convincing each other and the public that federal courts should not become common-law courts. They decided that the methods of common law would guide federal courts' decision making, but the state courts would be the mills to process the grist of everyday life.

The legislature is all-powerful. This doctrine has grown in federal constitutional law and has infected state constitutional jurisprudence. As a reaction to the Lochner era, the Supreme Court began to give Congress great rein. The structural constraints on the federal judiciary, however, are different from those on state judiciaries. One of the reasons the framers envisioned a weak federal judiciary is that the state constitutions that already existed provided for a stronger judiciary.

The makers of state constitutions restricted state legislative power. They responded to legislative overreaching by requiring that each piece of legislation be limited to a single subject, that legislative bodies hold public meetings, and that proposed enactments be read to the public. They' countered giveaways to banks, canal companies, and railroads by banning "special legislation"--bills that benefited only a few--and by prohibiting the use of public funds in private speculation.

State constitution-makers placed their faith in the judiciary to curb these legislative abuses, and they gave the judiciary the power to do it. But now, the state judiciaries are unthinkingly parroting federal constitutional doctrine and applying it in ways that contradict the principles of their own constitutions.

Theory trumps experience. When the framers of those 19th-century state constitutions put the brakes on legislative abuses, they were molding the law according to their experience. That is not what is happening with modern tort "reform" or with other legislative usurpations of judicial power.

Justice Oliver Wendell Holmes Jr. famously remarked, a century and a quarter ago, "The life of the law has not been logic: It has been experience." (1) Justice William Rehnquist echoed him a century later: "The life of the law is not political philosophy but experience." (2)

But in our era, the life of the law has become political philosophy--or, more accurately, raw political power gussied up as political philosophy. Here's how it works.

First, a think tank comes out with an "idea." Picture what a drink-tank researcher is: Cast your mind back to high school, and picture the biggest geek in your class (sorry if that's you)--the person who was very smart hut was largely challenged by living in the real world. Wasn't sure whether he or she was a communist, an anarchist, or an objectivist, but could hold forth for hours about the fine differences between them. Got a job once at a fast-food joint and was asked to clock out after the first 10 minutes.

The think-tank researcher expounds about the power of ideas. He or she is usually oblivious to what effect these ideas might have on some poor sucker who puts shoes on one at a time and actually works for a living.

The researcher cannot be exposed to the public, so the "ideas" are introduced by the public relations prison, or "flak." To get acquainted with the flak, think about high school again, and picture the "evil genius" in your class. This is the kid who, when the sulfuric acid got poured onto the chemistry teacher's notes, spouted denials with all the credibility of Arnold Schwarzenegger denying a groping incident, but still had an alibi; the kid who (everybody figured, but nobody could prove) posted compromising pictures on the school bulletin board; the one who carried a worn copy of Machiavelli's The Prince.

The flak lakes the researcher's idea and "spins" it. The flak is very, very good at spinning. In fact, the flak convinces workers who make $8 an hour that legislators (not one of whom makes $8 an hour) can decide better than jurors what is good for workers who get hurt and can't even make $8 an hour anymore. The flak convinces people that courts are instruments of the oppression of free enterprise.

In state legislatures, injured people and we who advocate lot them are getting hammered by tort "reforms" that take away rights born of a thousand years of hard-won experience. We are dying by a thousand cuts: caps on damages, limitations on joint and several liability, changes to the collateral source rule. There's nothing exciting about these judicial rules and procedures that protect people's rights, in the same way that there's nothing exciting about bread and button electricity, or indoor plumbing. But you grow fond of them, and you miss them when they're gone.

The "reformers" recognize that the judiciary, which includes jurors, is the branch of government closest to the people. That scares them. And they have responded with a successful, orchestrated movement to denigrate judicial power: which makes it possible to shrink judicial power.

The opponents of the civil justice system are students of history. They know--often better than we do--that juries were purposefully designed to thwart the exercise of power, whether by the executive branch, legislatures, overreaching judges, or corporations.

They condemn courts and juries as "undemocratic" while they extol the "democratic" nature of the U.S. Senate--where they can get 52 votes by representing 17 percent of the population. They know that experience, in the hands of the people, endangers their agenda of self-aggrandizement.

Starving the courts

So what do they do? They starve the courts. Newspapers are replete with tales of courts cutting hours or shutting down in cash-strapped states, including Alabama, New Hampshire, and Oregon.

Alabama recently ordered an across-the-board cut of 10 percent in its courts' budgets. This translates into layoffs for one-quarter to one-third of the workers in county clerks' offices. One judge said the cuts would bring her court to staffing levels not seen since 1989, when the court processed 9,000 fewer cases than it does today. (3) Alabama already had temporarily suspended jury trials. Oregon had done the same. (4)

Ever wonder why it takes three years to get a personal injury claim before a jury, while "business courts" receive added resources to resolve disputes between corporations more quickly?

These are the end results of a long and conscious process. State legislatures have weakened the courts so much that we trial lawyers and our clients don't even remember to be outraged. We're like the frog that is thrown into a pot of water and slowly brought to a boil. It's time to get out of the pot.

Opponents of our court system trivialize common law. They want us to abandon one of its primary features--the slow incorporation of experience into social norms--for the quick fix of legislation that satisfies their desire for instant gratification.

But experience matters, and lawyers know it. In 1945,Justice Robert Jackson expressed some still-useful thoughts about lawyers and the communities they serve:
 The county seat lawyer ... understands the
 structure of society and how its groups interlock
 and interact, because he lives in a community
 so small that he can keep it all in
 view. Lawyers in large cities do
 not know their cities; they know
 their circles, and urban circles
 are apt to be made tap of those
 with a kindred outlook on life.
 But the circle of the man from
 the small city or town is the whole
 community and embraces persons
 of every outlook. He sees
 how this society lives and works
 raider the law and adjusts its conflicts
 by its procedures. He knows
 how disordered and hopelessly
 unstable it would be without law. (5)

We are losing the fight between corrupted ideas and honest experience. We are losing because we have lost sight of what government is for, and what we are for. We have forgotten that, when we chose to emerge from the state of nature, we created government to protect us from our neighbors, to alleviate their trespasses against us. Trespass is the original tort, and government was created to deal with it. Administering tort law is a primary purpose of government.

You don't have to take that from me. John Marshall said it in Marbury v. Madison. That should be fairly good authority for any American lawyer.

What we believe

We trial lawyers have allowed our opponents to characterize us as naysayers--against progress and commerce and enterprise. Those are not good things to be against. So we must state clearly what we are for. Here are some things we can say.

We believe that where there is a wrong, there is a remedy. This should not be a strange notion in American jurisprudence, but it is rapidly becoming one.

We believe that the people shall judge. That idea preceded Thomas Jefferson, but he embraced it, and we rail cite him for it. We believe in juries. We want those workers who make $8 an hour to have the same say that their corporate bosses have in the affairs of the world.

We believe in individualized justice. We believe, in a judicial system in which each case is weighed on its own facts and remedies are fashioned accordingly--not in a "one size fits all" system created by legislative flat.

We believe in holding malefactors responsible, no matter how powerful they are.

Trial lawyers are at the forefront of a struggle against arbitrary power. As the Czech novelist Milan Kundera once wrote, "The struggle of man against power is the struggle of memory against forgetting." (6)

If we are to succeed in that struggle, we must jog our own memories and the memory of a public that is forgetting. We must remember that one of the fundamental purposes of the law is to make the powerful responsible to the powerless.

All American courtroom is one of the only places in the world where an ordinary citizen can call some of the world's most powerful people to justice. It is our job to make the citizens of this country remember what a treasure that is.



(2.) California v. United States, 438 U.S. 64.5, 648 (1978).

(3.) Brendan Kirby, Court System Braces for 500 Layoffs, MOBILE REG., Oct. 5, 2003, at 1.

(4.) Am. Bar Ass'n, State Court Funding Crisis (2003), available at funding/issues.html (last visited Nov. 20,2003).

(5.) Robert H. Jackson, Tribute to Country Lawyers: A Review, 7 TEX. B.J. 146 (1948).


JOHN VAIL is senior litigation counsel with the Center for Constitutional Litigation in Washington, D. C. This article was adapted from his recent address to the North Carolina Academy of Trial Lawyers.
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Author:Vail, John
Date:Jan 1, 2004
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