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Recently it was announced by Alabama Chief Justice Sue Bell Cobb that the state would be holding fewer jury trials to compensate for judicial system budget cuts. Just how many fewer? Cobb implemented a 50 percent reduction in the number of civil trial weeks and a reduction of 25 percent for criminal trial weeks.

Are we really to believe that there was no fat left to cut in the state budget? That hardly seems plausible. Rather it seems to be a reflection of values and priorities. Those with the purse strings know that in the current culture not many tears will be shed over putting a plaintiff’s cause on hold and or making the accused languish in a jail cell a little bit longer. It is the product of the cynical wisdom of realpolitik. What they fail to acknowledge is the violence this attitude does to our justice system.

The right to a jury is not a discretionary spending item and the Bill of Rights is not contingent upon a government accountant’s recommendation. What does it say when we endorse the idea that fundamental personal rights can cost “too much” money and are willing to freely compromise them under a theory of budgetary necessity? Ideas have consequences and certain ideas are patently inimical to justice. One of those ideas is the radical application of economics to the field of law.

In essence, what we are witnessing is the triumph of the cost-benefit analysis – the same intellectual evil fueling tort reform. This defective reasoning holds that the cost of providing for rights is to be counterbalanced against its supposed utility. This view looks only at the bottom line – with an emphasis on “bottom” – descending into the basest materialistic inclinations of human nature. (It can be soundly argued that the law and economics movement, and its central pillar, the Coase Theorem, is nothing more than a rationalized justification for the bad behavior of 19th century railroad barons.) Unfortunately, like many issues in the law today, cost-benefit analysis is the dominant paradigm in part due to it being the chief cognitive activity of insurance companies.

Financially, the delay of jury trials is a boon to insurance companies when applying the cost-benefit analysis. Without a trial setting (the cost), insurance companies are less inclined to make reasonable settlement offers. And without the risk of a trial they can enjoy the benefit of keeping funds in their possession – a benefit sometimes called the time preference.

The radical view of rights adopted by Americans holds they are inalienable, even in the face of a financial crunch. In Alabama, our code explicitly acknowledges our dependence on the common law of England, the bulwark of which, the Magna Carta, declares: “To no one will we sell, to no one will we refuse or delay, right or justice.”

But justice is undoubtedly being delayed in Alabama, and though not selling justice, the state has created a governmental/corporate arrangement that has made the administration of justice a for-profit industry. More than two years ago, there was an under-reported story that the state’s online court records system had become a “lucrative business,” thanks in part to a no-bid contract between the Alabama Administrative Office of Courts and a private technology company. Today, in light of this jury crisis, we are left to ask whether such a “no-bid” arrangement was wise – and whether such practices will continue in the future.

To answer that question, state leaders need only look to the Alabama Constitution, Article I, Section 35: “That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty and property, and when the government assumes other functions it is usurpation and oppression” What does it say that at the end of the day the citizens attempting to access the courts suffer delay but the corporate no-bid contract holders and insurance companies come out benefitting? On who’s behalf is the machinery of government functioning for?

Justice delayed is justice denied.

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