Reclaiming the Courts from Corporate Capture
How the consumer welfare and tort reform movements eroded the right to a civil jury trial, and how to fix it.
By Katherine Van Dyck, Senior Legal Fellow
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
—U.S. Constitution, Seventh Amendment
The civil jury trial is one of America’s oldest and most democratic institutions. Enshrined in the Bill of Rights, it was designed as a check against the abuses of the British monarchy and wealthy merchants. Yet, today, it is dying. Last year, less than 1% of federal civil lawsuits actually went to trial, and courts are dismissing civil cases at earlier stages and more often. Those that do make it to discovery are bogged down by higher costs and endless delays, so cases can drag on for nearly a decade or longer.
This throttling of litigation is no accident. The Seventh Amendment right to a civil jury trial is under assault. The assailant? Corporations who want to avoid accountability and maintain their stranglehold on our economy. They are using their power and influence to both slow the legal process down and convince courts that most lawsuits are frivolous, harmful, and just too expensive, allowing them to avoid accountability by keeping their misdeeds out of the public eye and away from citizen juries.
As a result, over time, our judicial system has been deliberately shaped to keep private plaintiffs out of court and away from juries. More and more people are pushed into private arbitration—an opaque process that tends to favor the wealthy and powerful – which is just what corporate America wants. When lawsuits stay in federal court, judges have taken over as the main deciders of factual disputes.
It doesn’t need to be this way. At a recent Senate hearing on Big Tech, Senator Josh Hawley offered an alternative vision to this erosion of the jury trial: “We could open up the courtroom doors and allow private parties access in such a way that it would make economic sense to bring a suit and you’d have a better chance of prevailing.”
Senator Hawley is right.
In the coming months, I’ll be digging into what’s happening in our courts and how they have changed, why the doors of justice are effectively closed to many of us, and what we can do to fix it and bring the jury system back to the center of American justice. In this first installment, I will tell you about why the Founding Fathers demanded that our Constitution preserve the right to a jury trial in civil cases; describe the parallel rise of the tort reform and consumer welfare movements in the 1980s; reveal how those groups, in combination, made it increasingly difficult to take advantage of the right to a civil jury trial; and lay out a framework to restore the Seventh Amendment to its rightful place in federal courts.
“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
Most people know the Constitution guarantees the right to a jury trial in criminal cases, which protects the accused from abuses of state power. But the Constitution also guarantees the right to a jury trial in civil lawsuits, protecting plaintiffs from the abuses of economic power. This right, deeply rooted in English common law, was embraced by early American colonies, where jury trials put justice in the hands of ordinary people. They acted as a safeguard against abuses by the powerful, ensuring that justice wasn’t just for the elite. William Blackstone, an influential 18th century English jurist and the ultimate authority on the common law that is the backbone of our legal system, argued that “juries were the best investigators of truth and the surest guardians of public justice.” When the colonists rebelled against King George, they included in the Declaration of Independence’s list of grievances that the monarchy was “depriving us … of the benefits of Trial by Jury.” In turn, the absence of a civil jury trial right in the original Constitution was so controversial that it nearly derailed its ratification. Thanks to pressure from the Antifederalists, the right was restored in the Bill of Rights.
“In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”
—James Madison
It’s widely acknowledged that jury trials play an important role in protecting the economic rights of Americans. The civil jury trial is feared by defendants, especially in antitrust cases where their anticompetitive behavior is put under a microscope and judged by ordinary citizens in a public forum. (When Google was sued by the Justice Department in 2024 for monopolizing internet advertising, it wrote a $2.3 million cashier’s check to the government to moot the Justice Department’s claim for damages, thus avoiding a jury trial.) Just last year, the Supreme Court reminded us in SEC v. Jarksey—a case challenging the constitutionality of the SEC’s administrative judges—that “[t]he right to trial by jury is ‘of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right’ has always been and ‘should be scrutinized with the utmost care.’”
But federal courts, beginning in the 1980s, have chipped away at this right with barely a nod to the Constitution. The class action lawsuit —a device the Supreme Court tells us is aimed at the “vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all’”—has been eroded through class action waivers forced, in tandem with arbitration clauses, on consumers and small businesses, and plain disregard for the rules governing how judges should decide if a case can go forward as a class action or be decided just for the individual plaintiff. They have also turned the Federal Arbitration Act into a weapon that keeps victims of corporate power out of court. As Justice Sandra Day O’Connor lamented in 1997, “the Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.”
Even when plaintiffs manage to get to trial, judges have come to decide which allegations in a complaint are “plausible” and which inferences are “reasonable,” going far beyond their traditional role of a legal umpire calling balls and strikes on how to read the law. They routinely make calls on the weight and credibility of expert testimony—decisions that used to be the jury’s job. They can allow defendants to withhold evidence during discovery by claiming it’s too expensive to produce, so juries never hear the full story. Judges can also overturn verdicts if they disagree with the jury. We saw this last summer in the NFL Sunday Ticket case, when a district court judge in California overturned a $4.6 billion jury verdict for consumers because he disagreed with how the plaintiffs’ expert and the jury calculated damages. Then we saw it again more recently when the Federal Circuit Court of Appeals threw out a $20 million jury verdict against Google for violating a start up’s patent. Once again, the court agreed that Google violated the law but didn’t like how the expert or the jury calculated damages.
“That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.”
—George Mason, Virginia Declaration of Rights, Article 1
How did we get here? Civil jury trials have been systematically and intentionally eroded by “tort reform”—a decades-long campaign, led by large corporate interests to make litigation overly complicated, economically disadvantageous, and culturally taboo. Tort reform advocates talk about “lawsuit abuse” that exploits the legal system, clogs the courts, manipulates juries, and artificially inflates damages. They paint plaintiffs’ lawyers as greedy ambulance chasers and corporate defendants as victims of runaway juries. And they claim that their policies and proposals will protect innocent businesses from unfair verdicts and courts’ resources from frivolous claims.
We all remember the infamous McDonald’s coffee case. Hidden in that media storm was an elderly woman who suffered third-degree burns, underwent skin grafts, lost 20% of her body weight during an 8-day convalescence in the hospital, and never fully recovered from the physical toll of the ordeal. Also hidden was McDonald’s refusal to pay her medical expenses—a mere $20,000—before any lawyers were hired, its refusal to settle before trial, and the 700 other reports of severe coffee burns it had received in the 10 years leading up to this woman’s injuries. But corporations used it to spin a narrative about runaway juries and money-hungry plaintiffs, creating a powerful mythology that courts use to ignore clear constitutional, statutory, and procedural mandates in favor of outcome-based decisions, often without evidentiary support.
The tort reform movement parallels Robert Bork’s consumer welfare movement. Both are corporate power grabs that captured the American judiciary and allowed them to frequently avoid accountability. One grew out of backlash in the 1970s to government regulation and enforcement. The other grew from corporate opposition to class actions and rising jury verdicts. Both promised that their policies would benefit all market participants by making our economic and judicial systems more efficient. And both have made it harder for plaintiffs to enforce laws meant to protect them—undermining the democratic goals of our antitrust laws, class actions, and jury trials.
The success of the tort reform movement can be seen in the data: its rise in the 1980s coincides neatly with the steep decline in jury trials that began around the same time. The real winner has been big business—not the public, and certainly not plaintiffs. Courts now justify intruding on the jury’s role by citing the need to screen for frivolous lawsuits and protect defendants from unnecessary expense. Because judges have made it harder for plaintiffs to survive pre-trial challenges to the legitimacy of their lawsuits, plaintiffs’ initial filings, including the complaint, have grown longer and longer in attempts to survive. In turn, defendants make pre-trial challenges to those complaints more often. As a result, the courts are now jammed with an endless cycle of long and complex motions to dismiss, discovery fights, and summary judgment motions, wasting taxpayer dollars and slowing the system to a crawl. Justice for victims of corporate wrongdoing is delayed for years, if it comes at all. In antitrust class actions, the mean time between the initial filing of a new antitrust lawsuit and settlement has skyrocketed from 4.5 years in 2009 to 7.4 years in 2023. A sliver of those cases go to trial, and those that do can take up to ten years or more.
In short, defendants continue to earn profits off their misdeeds, plaintiffs get little relief, and the juries at the heart of our democratic civil justice system are all but erased. Justice delayed is justice denied.
“Trial by jury is part of the bright constellation which leads to peace, liberty and safety.”
—Thomas Jefferson
In the coming months, I’ll take a closer look at how courts are intruding on the jury’s role, step-by-step, especially in antitrust cases. We’ll explore the role of corporate power and be guided by these principles:
Arbitration began as a mutually agreeable alternative to the judicial system for two or more commercial enterprises resolving commercial disputes. It has become a coercive tool to deprive plaintiffs of their day in court. Congress should ban arbitration agreements in antitrust, consumer, civil rights, and employment disputes.
The class action is a democratic tool designed to enable opposition to outsized economic power and corporate malfeasance. Class action waivers should be banned alongside arbitration agreements, and Rule 23 should be interpreted to allow class-wide trials where the only other option is no scrutiny of big business and no recovery at all for its victims.
The Federal Rules of Civil Procedure—that create standards for evaluating pleadings and motions and tell courts and lawyers what types of evidence they have to hand to hand over and how to conduct trial—were created in 1938 to make courts more accessible. We should return to the more flexible pleading standards those rules envision and prohibit courts from ruling on plausibility, reasonableness, and expert witness credibility and make summary judgment a disfavored practice.
Discovery rules need a serious overhaul. Defendants shouldn’t be able to stall cases with frivolous motions and objections designed to conceal evidence. Parties should be held to shorter timelines, and conduct causing delay and obfuscation should be sanctioned.
Juries are essential to keeping corporate power in check and ensuring regular people have a voice in the administration of justice. If we want a civil justice system that works for everyone, not just the powerful, we need to reclaim the courts, revive the right to trial by jury, and make sure the courtroom doors are open to all.