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Activist Judges
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“One of the most important aspects of legal reform is the
selection of judges who interpret the law and leave
lawmaking to legislative bodies.”
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“When selecting judges, the criterion is easy to state but
hard to find – judges who will follow the law. It is
universally acknowledged that the legislature it the
“policy-making” body and the judiciary is the “interpretive”
body. Legislators are representative of the people and
their processes are organized to afford transparency so all
manner of interests can be vetted. In contrast, the
judiciary is neither meant nor organized to be
representative … .Whenever the judiciary asserts itself into
the policy-making function…it thwarts fundamental democratic
process.”
(KRC:
Washington
Legal Foundation, “Conversations With …, Hantler, p. 6)
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“The success of state tort reform efforts requires supreme
courts with rule of law majorities.”
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“By usurping the rightful role of the legislative and
executive branches, the judiciary is trampling on the
fundamental principle of separation of powers. As a result,
there is no doubt that our liberty interests are being
threatened. All this is happening because we are in danger
of having a government not of laws, but of jurors.”
(KRC:
Hantler, “Seven Myths…” p. 19)
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“The best piece of tort reform legislation is only as good
as the next supreme court that declares it
unconstitutional.”
(KRC:
Washington Legal Foundation, “Conversations With …, Hantler
quoting Engler, p. 6)
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“We have seen several activist state supreme courts ignore
the constitutionally expressed will of their state
legislatures and strike down tort reform legislation.”
(KRC:
Washington
Legal Foundation, “Conversations With …, Hantler, p. 6)
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Too many tort reform statutes have fallen victim to the
trial bar’s “judicial nullification” project and activist
judges who ignore the will of their legislatures.
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“Judges who perpetuate “lawsuit abuse” in their courts have
changed their behaviors after significant and persistent
media and public attention.”
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“Last year in the political arena, the legal reform
community sent a strong message to activist judges who
abandon the rule of law and yield to the temptation to
legislate from the bench. Activist incumbents and
candidates for state supreme court were turned away by
voters in [seven states].” In several states, activist state
supreme courts ignore the constitutionally expressed will of
their state legislatures and strike down tort reform
legislation.
(KRC:
Washington Legal Foundation, “Conversations With …, p.
1)
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Ridiculous
Jury Awards Illustrate
A System
Out of Control
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In 1995 a Mississippi jury handed down a $500 million
verdict against a Canadian funeral home chain in a case
involving breach of contract over the plaintiff’s exclusive
rights to sell funeral insurance through the defendant’s
funeral homes. The plaintiff retained an extremely high
profile, flamboyant attorney who successfully turned a
routine commercial dispute into a high stakes morality play
involving an American war veteran and a foreign
conglomerate. The parties eventually settled for an
undisclosed amount.
(KRC:
Olson, The Rule of Lawyers, pp. 210-215)
The occupants of a 1979 Chevy Malibu, who
were severely injured when their car was rear-ended by a
drunk driver, were awarded $4.9 billion. The award exceeded
the GNP of 11 UN member states combined and prompted an
editorial in the Washington Post entitled, Casino Justice,
which said that it “makes the tort system into a kind of
lottery in which clever trial lawyers and a few victims get
very rich at the cost of society’s confidence in the justice
system”. The award was subsequently reduced to $1.2
billion.
(KRC:
Olson, The Rule of Lawyers, pp. 237-238;
“Casino Justice”, Washington Post (editorial), July 13,
1999)
“In 1999, a New Orleans jury awarded $3.4
billion in punitive damages for a fire caused by leakage
from a train car. No one was killed in the accident; the
plaintiffs’ claims were for fear, suffering, evacuation,
medical expenses and property damage. The case was
eventually settled while it was on appeal.”
(KRC:
Olson, The Rule of Lawyers)
In 2001, a Louisiana family sued ExxonMobil
because a small portion of the family’s property had been
contaminated by the company’s longstanding industrial
operations in that area. ExxonMobil was ordered to pay the
plaintiffs $1 billion despite the fact that the cost of
cleanup was valued by Exxon at $46,000 and the land was
valued at somewhere between $500,000 and $1.5 million.
(KRC:
Olson, The Rule
of Lawyers, p. 210)
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