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Freedom to HarmThe Lasting Legacy of the Laissez Faire Revival$
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Thomas O. McGarity

Print publication date: 2013

Print ISBN-13: 9780300141245

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300141245.001.0001

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Civil Justice

Civil Justice

(p.197) 15 Civil Justice
Freedom to Harm

Thomas O. McGarity

Yale University Press

This chapter explains that the state common law serves as an institutional counterweight to a regulatory system which is too easily controlled by the very interests it is supposed to be controlling. Common law juries cannot be lobbied or captured by well-endowed special interests, and there are no revolving doors to the jury box. At the outset of the Laissez Faire Revival, there was not the slightest indication that ordinary citizens were dissatisfied with the American civil justice system. Several of the most frequently enacted reforms had devastating impacts on low- and middle-income Americans, who were the most vulnerable to the consequences of corporate malfeasance. Thus, instead of targeting unwarranted litigation, state legislatures attempted to reduce all litigation through brute-force restrictions on the rights of plaintiffs to bring certain kinds of lawsuits and the discretion of jurors to award damages.

Keywords:   state common law, regulatory system, jury, Laissez Faire Revival, American civil justice system, lawsuits

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