One might find one's self curious as to why our court system is in the precarious situation that it is in today. Further one might wonder why our nation seems to be so litigation happy. To find the answers to these questions one merely needs to trace the concern to the root of its cause, and that root is the philosophy being taught to law students through out the country, but not just to law school in general. There is one specific area of the law which has been problematic for years. This area of law is the most well known area of the law to lay people through out this fine land. That area of law is of course tort law.
Let us delve into the specifics, as law requires specific definitions. It is crucial that we find and determine what : 1) is the definition of a tort, and more specifically tort law? 2)are the powers vested to the court from the Constitution? 3) are the powers vested to the legislature from the Constitution?
Firstly the definition of tort: Tort itself has many definitions as it falls into varying categorizes, but for our purposes we will focus on the general definition of tort:”Tort is a civil law other than breach of contract, for which a remedy may be obtained, usually in the form of damages. A breach of a duty that the law imposes on persons who stand in a particular relation to one another. Thus Tort Law is the branch of law dealing with such wrongs.”(Blacks Law Dictionary, 724, Pocket third edition.)
This is self explanatory in nature. Tort law is expressly limited from entering into contract law, however tort damages are being applied for equitable purposes in contract law. A tort is simply a wrong, it can be intentional, unintentional, it implies a duty, it has elements which are required to establish it, however for a general analysis these elements, and the intention of parties involved, is irrelevant. What is important for a general analysis as to why our court system goes to such outlandish lengths in allowing tort cases before it, is the application, and reasoning behind such application, of the Common Law. Common law as I am interpreting it is “[g]eneral law common to the country as a whole, as opposed to special law that has only local application” (ibid. 118)--I am also applying the second initial definition of Common Law “ The body of law derived from judicial decisions, rather than from statutes, or Constitutions....”(Ibid. 117-118) [note, Common law in this sense is always trumped by a statute, which is a law passed by the legislature.]
There is an attitude,within many legal circles, that the Common law, which is the basis of our legal system, dating back to the old English judicial system, before the birth of our nation, is too strict and does not focus on each cases elements. A law professor has stated that if common sense is applied to archaic common law it can be shown that they do not apply justice, because they are so strict in application of award for damages, that they do not achieve justice. Perhaps not, but one must evaluate even further, commonsensical applications of common law. One must ask ones self why was the common law established and codified in the first place? The reason for this was because the judicial branch of government, is just that, a branch of government. It is therefore funded by the citizens of this fine land, thus it would be detrimental to bring frivolous arguments before the court. This wastes tax payer's money, the time and resources of the court, and denies facilities, and resources to cases that are based on more pressing matters.
This is not to say that we have no need for a tort branch of the law, or, that all damages for wrongs should be denied to all whom are injured, rather it is to put a limit on who can claim damages to prevent the aforementioned problem from occurring. However to say that the application of the common law is inefficient, and is inequitable, is to ignore the foundational reasons for this law system. That reason was simply put, to limit the strain on the citizens brought about by misuse of the court.
Since law, and the teaching of law, often refer to hypothetical situations, let us delve into our own hypothetical situation.: [Frank is the owner of a grocery store, he has had this store for twenty some odd years. He keeps his store clean, diligently checks the background of his employees, listens to the complaints of his customers, and has made a comfortable living providing this service to the public. One day Frank while being ill continued to run his shop, and did not not noticed that at the back of the store a jar of pickles,which had just been placed there by an employee, and was the only item on the shelf, had fallen shattering on the floor, spilling the liquid contents and making the floor slick. A young woman walks into the store and is shopping for various groceries for her family that week, She didn't noticed the slanted shelf, and inadvertently she slips on the spill, and she falls, sustaining serious lacerations from the broken glass and a head injury from landing on the ground.]
If we were to apply the loosened theory of torts to this case, as proposed by many law professors in this country, the chain of the events would begin to flow like this: 1. Who is liable? Despite lack of knowledge the store owner is liable, but what about the manufacturer of the pickle jar? Perhaps so, the pickle jar could have been negligently constructed. One of Frank's employee's could be held vicariously liable, for negligently placing the jar on the edge. What about the subcontractor who installed the shelves? If the shelf collapsed it could be their fault as well....etc
The Common law had a principal of the four elements of negligence which were to apply to decide whether or not negligence applied to the facts at hand. These elements are
- Was a duty of care owed?
- If yes, was it breached?
- If yes, was the breach of duty the proximate cause of the harm?
- If yes, does the evidence support that the defendant's breach caused a pecuniary injury?
Through activism in the courts, certain elements can be removed from the burden of proof, effectively shifting it away from the plaintiff to the defendant. As this is merely a general overview of the problems facing our country in regard to Tort law I will only mention one method. Res Ipsa Loquitur....simply put “the thing speaks for itself”. If this theory is applied step four is removed from the analysis and is replaced with a subjective question. “But, for the negligence, would the bottle of pickles have fallen?” There need not be proof that the shelf was broken, or that if there was a breach it was the proximate cause of injury, thus loosening the requirements, and forcing the plaintiff to prove that neither he, nor those whom he hired, acted negligently.
What about contributory negligence? The young lady did not properly study her surroundings, nor did she fully grasp the dangers in that area before acting. This notion is implacable in a court of law, but it is lessened when the theory of Res Ipsa Loquitur is applied.
All of this begs the question of the orbit of liability. Should the young woman's father be liable for not properly raising her to check her surroundings? Could it be that the store owner's grandfather was negligent for coming to the country in the first place? After all, but for his coming to this country his grandson would not have owned, and operated, the store where the young lady fell. This is all speculative in nature, and speculation is inadmissible in court. But why should we stop here? Would it not be too strict to impose a limit on the type of evidence allowed into our Courts? Surely Spectral evidence (evidence of the nature of dreams and visions. For example.... “I had a vision of a ghost and therefore Sgt Rock murders Democrats every Saturday night while burning a book about the glory of gay marriage.” such evidence was allowable in the courts of Massachusetts during the Salem Witch Trials.) is valid, and could prove the negligence of the great grand parents of the pickle jar manufacturer's great grand uncle twice removed!
After all, the rules that are established and govern our court are archaic and are inequitable in nature. Hence because of such notions, we are weakening the order, and liberty, which the courts protect. Furthermore we are harming the citizens who have to pay taxes in order to allow mindless cases to proceed before the court.
Secondly the Constitution clearly states the role of the Judicial Branch in Article III section 2 of the United States Constitution: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States....shall be made, under their authority....with ....exceptions....and under such regulations as the Congress shall make. “
In the first line it is clearly sated that the laws shall arise under the Constitution of the United States, therefor, the constitution is the ultimate rule and guideline to the application of law in our system. The philosophy of loosened Tort law believes, in a sense, judges via a sense of judicial interpretation as provided by the 1803 case of Mauberry vs. Maddison, to change the interpretation of the law to such a point as to create new law. This power was not given to the courts by the Constitution.
Article I, Section 1 of the United States Constitution provides “ [a]ll legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”. As one can clearly see the Court is not listed as a legislative body.
Thirdly Article I, Section II provides”....No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen”. Again a judge is not listed as one who is qualified to be a legislative representative. This is because the duty of the court, and of the legislature are DIFFERENT!
Thus it is clear that the Constitution provides no grounds on which the courts of our nation can legislate from the bench. Then why is it that such legislation from the bench occurs? Why does the legislature not step up and reaffirm their power, as it is their duty to do so?
Political intentions perhaps, our nation's political parties, particularly the Democrat party, seem to think that Socialism is the best thing since sliced bread, therefore they want to get a law enacted where the people will be unable to hold them accountable for allowing such an unpopular law to go through.
More importantly, many lawyers are under the impression that such action is allowable, because that's what they're taught in law school. The constitution is archaic and therefore inapplicable in such circumstances as arise in the modern day. (one merely needs to see the arguments made against the Second Amendment to know this is true). However a nagging question remains...how can these professors, and litigators, claim on one hand that the common law is archaic, but then claim that their authority is vested to them by the common law? That is the precise flaw in their logic. They want to pick and choose what applies to whom, and they want to choose when and where it does apply. That is not equitable, that is not due process of the law...that is dictatorship through an erroneous application of jurisprudence.
In conclusion I will state what needs to be done to address this serious issue. First it is the duty of each citizen to apply pressure to their elected representatives to apply limitations to Judicial legislation. Second It is absolutely critical that law schools teach the purpose of the common law as it was intended by both the courts of the past, and the founding fathers. Third Education must be reformed at all levels. It is without a doubt failing our students, when even elected officials , and judges, refer to our country as a DEMOCRACY.
We are not a Democracy, we are a representative republic, with democratic elections. We purposefully put restraints on our government, because the power our government has is vested in them, by we the people. In other words we're the boss of the government. The more flexible we allow our judicial interpretations to become, the weaker our system of government becomes. Students must learn of the true history behind the style of government that our Founding Father's chose. If they are not, we will continue down the path of judicial activism, and the Constitution will be nothing more than a straw man from which attorneys can claim they vest their power from, and then shoot it down for everything else because it's “archaic”. If we return to a system of logic and reasoning, along with an acceptance of our founding principals (faith, and reason, as my law school puts it) then it is clear that judicial activism is not only inequitable, but it is immoral.
It's sad to say, but even at a wonderfully conservative school such as my law school....one professor (conservative on all other issues) believes in judicial activism...and of course, this goes to the simple application and use of Tort law. It has simply gotten out of hand.