An Open Letter Regarding Tort Reform In Arkansas

October 10, 2013

Sen. Alan Clark
P. O. Box 211
Lonsdale, AR 72087

Re: Tort Reform

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Dear Sen. Clark,

This past Monday, October 7, at a meeting in the State Capitol, you stated that, while you’d been silent on that issue in the previous session, you were going to be a “vocal advocate” for tort reform in the next session. I write to ask you a a simple question: Why?

What I mean is, literally everything about your website suggests that you consider yourself to be a Conservative.  Your legislative history strongly suggests the same conclusion.  If I asked you to describe yourself in five words, I would bet dollars to donuts that “Conservative” would be on that list.  It is part and parcel of who you are, right?

Yet tort reform is absolutely, demonstrably NOT conservative.  It replaces local control with government oversight, minimizes personal responsibility, subverts the free market, and is “Big Government” at its very worst. Nor is it important for the health and growth of small businesses; tort reform doesn’t even crack the top seventy concerns of small business owners in the United States.

These are all verifiable statements, and this post goes into much greater detail about all of them. The main reason I write, however, is because of the jarring intellectual disconnect between your statements on Monday and your own professed beliefs on your website, where you write:

The Declaration of Independence, The Constitution, and the Bill of Rights are three of the greatest documents ever written. They have helped make the United States the greatest, strongest, wealthiest, freest nation in the history of the planet. When someone does not believe in the 2nd Amendment I question their commitment to the rest.

At its most basic, Senator, “tort reform” is nothing more than a direct assault on Arkansas Constitution and on the principles behind Bill of Rights. When you remove or limit the right of a citizen to have a trial by jury and have the community of his peers decide what his injuries are worth, you subvert Article 2, section 7, of the Arkansas Constitution (“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy”) and you imply that you think the Framers of the Constitution were off base when they included the Seventh Amendment (“the right of trial by jury shall be preserved” in all causes of action that existed at common law where the amount in controversy is greater than $20).

While the Seventh Amendment does not apply directly to the states, it is the genesis for Article 2, section 7, and the rationale behind the Seventh Amendment is as valid today as it was in 1789.  So, I ask you, if someone was pushing a “reform” that you felt infringed upon the Second Amendment, would you be a vocal advocate for that measure?  I tend to think you would not.  Yet, if you hold the Bill of Rights sacrosanct, as you appear to, and if you are committed “to the rest” of the Amendments, not just the Second, then why would you support measures that erode the protections that stem directly from the Seventh?

I know the common refrain in favor of tort reform is that lawsuits are somehow “out of control” and are hurting businesses and (especially) doctors.  This is simply false.  Tort lawsuits in state courts have been on the decline for years and are at their lowest levels since 1984.  The number of physicians in the U.S. has grown by 40% over a time when the U.S. population as a whole has grown by only 18%.  Medical malpractice claims account for only 2-3% of the cost of healthcare.

Senator Clark, I assume that you have no interest in listening to me–a proud member of the Arkansas Trial Lawyers Association–rebut the incorrect assumptions that underlie the push to limit citizens’ rights to fair and full compensation for their injuries.  Instead, please let me leave you with this: Thomas Jefferson and John Adams were, by all accounts, diametrically opposed when it came to many ideas about government and its functions.  Yet, there was at least one right on which both men agreed.

“I consider the Trial by Jury as the only anchor ever yet imagined by man, by which a Government can be held to
the principles of the Constitution.” -Thomas Jefferson

“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.” -John Adams

I hope you will reconsider your position, Senator Clark.  I urge you and your colleagues to reject tort reform as a disgusting infringement on the rights of Arkansans.  This may not sit well with the Chamber of Commerce, but your constituents will appreciate the fact that you stood up for your core Conservative principles in the face of special interests.

Sincerely,

Matthew D. Campbell

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