Greetings,

For our final unit we have been looking at tort law, which deals with civil damages and penalties from companies to individuals.  This gives us a chance to examine some fun and controversial cases, but it also gives insight into how one applies basic democratic concepts of fairness.

We looked at the McDonald’s “Hot Coffee” case last week, where many of the students decried the verdict where a jury awarded Mrs. Leibeck more than 2 million dollars.  Many students applauded the fact that a judge lowered the damage amount to around $450,000, which in their eyes seemed more reasonable, though still excessive.

This week we looked at the case of “State Farm v. Campbell,” decided in 2003.  The case had its origins in an accident caused by Campbell.  Over a period of years, State Farm hung Campbell out to dry, which was bad enough.  Subsequent investigations showed, however, that State Farm had a nationwide policy of targeting lower income, lower education clients for systematic fraud.  Their reasoning appeared to be that they would not fight back.  So incensed were juries in this case that juries assessed State Farm with a $145 million in punitive damages.  Most students agreed that though the amount was large, the verdict seemed fair given the egregious nature of their conduct and the fact that it proceeded from explicit policy within State Farm on a national level.

By 2003 the Supreme Court got involved, however, and overturned lower court verdicts, putting certain rules in place that cap the amount of damages courts can award.  Consumer advocacy groups cried foul, business interests cheered, and some wondered what exactly the Supreme Court was doing by hearing the case in the first place.

As to last issue, the Supreme Court intervened on the basis of the Constitutional guarantee of “due process of law.”  But this begs the questions, “What is due process?”

Two basic views exist on this subject:

• The more “conservative” view holds that “due process,” means you get a fair “process,” in your case.  Did you get a lawyer?  Did the judge act appropriately?  Was the jury properly empaneled?  If you have these elements in place, you received your guarantee of “due process.”
• The more “liberal” view believes that “due process” goes beyond the process itself to a basic concept of general fairness.  Specifically in the State Farm case, State Farm argued that it cannot receive due process if it has no way of anticipating what its punishment might be.  A defendant on trial for robbery has a reasonable idea of his sentence might be if convicted.  But in tort law cases companies subjected themselves to the “whims” of the jury with any possible outcome.  They argued that the Court should devise clear rules for juries in the awarding of punitive damages.

By a 6-3 vote, the Supreme Court agreed with State Farm.  Interestingly, the three dissents came from opposite ends of what we usually consider to to be the political spectrum, as “Conservative” justices Scalia and Thomas joined “liberal” Justice Ginsburg in stating that, 1) The Supreme Court had no real jurisdiction in this case, and 2) Even if they did, a belief that the fine was too high is no compelling reason existed to overturn the jury’s verdict.  Ginsburg, I believe, made the “conservative” argument that if Utah (where the case originated) wanted to put a cap on damages they could do so through their legislature.

One reason why I like looking at these two cases is that they often produce a healthy tension, especially for more conservatively minded students.  Most in class argued that the McDonald’s case shows that Americans are too litigious, irresponsible, etc., but many of these same students also decry “judicial activism.”  Well, “judicial activism” of a kind changed the verdict of the jury in both the McDonald’s and State Farm cases.

Also, Conservatives generally tend toward the “pro-business” side of questions, but in these cases supporting juries meant supporting the “little guy” and not “big business.”

And this raises another broader question.

Juries, like any other institution, have a mixed history.  But practices such as trial by jury have long been considered pillars of free societies.  But the power of juries also hints at the fears of some of the founders on the role of the “common man” with difficult questions.  Many at the Constitutional Convention sought to isolate federal government from the vagaries of the “mob.”  LIkewise, do we believe that juries, rather than judges, are the surest guarantee of liberty?

This raises a still broader question, one that has lurked in the background of the entirety of this whole year:  Is democracy best thought of as a process, or as a result?  How we answer that question might depend on the circumstances.  Most would not call a people “democratic” if 51% of them voted to remove freedom of speech.  But many also do not like the idea of unelected, appointed officials overriding “popular” legislatures, such as when a Virginia judge recently overturned Virginia’s “marriage amendment” passed through its legislature.  Our own system of government was set up precisely to provide this kind of give-and-take, but the emphasis must be in one direction or the other, and we must choose.

This will be the last update of the year, and I want to take this space to say a huge thank you to all the students, all of whom I have taught for at least two years, and some for five.  I’ve had a wonderful time and learned so much from them.  Thank you also to all the parents who have offered so much support to their children and the school.  Many blessings to all,

Dave