U.S. Constitution (source: Wikipedia)

U.S. Constitution (source: Wikipedia)

I recently attended the Second Annual “Living Constitution” Lecture at the Brennan Center for Justice. The keynote speaker this year was Senator Sheldon Whitehouse and his topic was “Living Up to Our Constitution.”

Sen. Whitehouse identified four ways in which we live up to the Constitution, I am excerpting some of the best bits and breaking them into four separate posts for your contemplation this holiday weekend.

Part Three
Defending Our Courts

The third way in which we live up to our Constitution, is by upholding our court system. Sen. Whitehouse points out that the right to a day in court is guaranteed to us by the Constitution. His concern is that this Constitutional right is under assault by corporate defendants.

The Constitution mandates respect for the process that allows [injured plaintiffs] to stand up for their legal rights. Trial by jury is established in Article III, Section 2 of the Constitution, and by the Sixth and Seventh Amendments. The Constitution promises a “day in court,” however annoying that day might be to the corporate defendant.


For years, business interests, operating through the Chamber of Commerce and other “law reform” outfits, have mounted a public relations campaign against the civil justice system. Their tale is that discovery costs, juries, and punitive damage awards are all out of control, allowing unscrupulous plaintiffs’ lawyers to hold corporations hostage and extort massive settlements in a litigation lottery that frustrates public policy. Their goal is to make corporate defendants seem the victims, justifying mandatory binding arbitration (often with systematically biased arbitrators), caps on damages, restrictive readings of statutes of limitations, and heightened pleading standards.

How many times have you heard GOP talking points blaming the high cost of medical care on “trial lawyers”? How many times have you heard some winger shouting down the house about “tort reform”? Do you know what tort reform is? Pups, this is code for taking away your right to go to court if you are injured by a doctor’s malpractice, or a defective product, or the negligence or recklessness of another person or corporation.

FAUX News’ pundits rant and rave about out of control jury awards, but they always manage to skip over the part where there would have been no award of damages UNLESS THE DEFENDANT WAS FOUND TO HAVE DONE SOMETHING WRONG. In the guise of trying to fix some of the unintended consequences of the class action lawsuit rules, Big Corpa would take away the right to redress which goes back before the Constitution, before the Magna Carta, all the way back to before there was an England, back when that island was composed of smaller Anglo-Saxon kingdoms and established the practice of weregeld. The term originates from the Middle English word “were” meaning “man” (think “werewolf”) and the Saxon word “geld”, “gilt” or “geldt” meaning “money”. The concept was also used throughout the Scandinavian world and the Germanic world from at least the end of the Roman Empire. This has been a fundamental human right for millennia.

We live in a world where corporations are allowed (ahem) free speech rights in the form of large campaign contributions and soft money advertising campaigns, even if the views expressed are directly contrary to the views of their shareholders. Sen. Whitehouse rightly points out that the only branch of government where an ordinary citizen has any hope of making their plea in front of a decision maker who is not bought and paid for with campaign contributions, is before the jury box.

Corporations would be only too happy with a world in which their every contact with government officials – Presidents, governors, federal and state senators and representatives – every contact is with individuals and institutions who have been rendered supple to their interests by the emollient effect of corporate contributions. Against this lubriciously accommodating world stand the hard square corners of the jury box, filled with ordinary Americans, whose views you tamper with only at your legal peril, and before whom the mightiest corporation stands equal with its most humble and voiceless victim; where each party has equal opportunity to put its case to a group of our peers; where the status quo can be disrupted; where the comfortable can be afflicted and the afflicted find some comfort, all under the shelter of the law.

We stand up for the Constitution when we stand up for our courts.

Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.