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By: Jacob E. Daly
Every year since 2002, the American Tort Reform Foundation has issued its ranking of the country’s worst jurisdictions, which it colorfully names Judicial Hellholes®. According to ATRF, these are jurisdictions – whether an entire state’s civil justice system or a particular court, a category of litigation, or a legislature – where courts or lawmakers permit the expansion of civil liability in unfair and unbalanced ways. ATRF’s goal is “to shine a light on imbalances in the courts and thereby encourage positive changes by the judges themselves and, when needed, through legislative action or popular referenda.”
ATRF issued its 2022-2023 report last month, and it ranked the top (worst) 8 Judicial Hellholes® in the country as (1) Georgia, (2) the Supreme Court of Pennsylvania and the Philadelphia Court of Common Pleas, (3) California, (4) New York, (5) Cook County, Illinois, (6) South Carolina asbestos litigation, (7) Louisiana, and (8) St. Louis. On ATRF’s “Watch List” this year are the Florida legislature, New Jersey, and the Texas Court of Appeals for the Fifth District. ATRF does not measure a standard set of objective criteria to arrive at its rankings, but some of the characteristics that Judicial Hellholes® tend to have in common include (1) a propensity for nuclear verdicts, (2) excessive spending on advertising of legal services, (3) broad venue rules that allow forum shopping, (4) acceptance of novel legal theories, (5) liability-expanding decisions, (6) allowing junk science in the courtroom, and (7) discovery abuse.
Of course, whether a particular jurisdiction’s ranking is justified depends on one’s perspective. ATRF is a pro-business organization, and so an evaluation of its criticisms of these jurisdictions must take its perspective into account. To be fair, many of ATRF’s criticisms are valid, but some of them are not. With respect to the appellate courts in a Judicial Hellhole® jurisdiction, it must be remembered that judges do not make decisions in a vacuum. They are bound by the constitution and laws of their state. Good judges base their rulings on the text of the relevant constitutional provision or statute at issue, even when doing so causes them to issue a ruling that is contrary to their personal views, and they should be applauded for refusing to engage in judicial activism. In situations like this, it is not fair to criticize the appellate courts because they are not policymaking entities. That being said, appellate courts are not immune from criticism, and when they issue decisions that are not grounded in constitutional or statutory text, it is fair to criticize them.