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Bench Memos

NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—December 18



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1997Best is worst—Best v. Taylor Machine Works, that is. In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation. In twisted confusion over which branch has the authority to make law, it also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, the court strikes down, too, the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”



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