dissenting:
142 I respectfully dissent. The majority opinion analyzes the plaintiffs constitutional claims under the wrong standard of review and reaches the wrong result. The plaintiff has challenged the statute in question as a violation of due process, equal protection, the remedies clause of Utah's "open courts" provision, the separation of powers doctrine, and the right to a jury trial. Despite the protection each of these rights receives in the Utah Constitution,1 and despite this court's clear precedent requiring a heightened standard of review in such challenges, the majority instead identifies a need for "deference to legislative judgments in a Berry review" and specifically rejects heightened serutiny in fa*146vor of a "rational basis" standard. In particular, the opinion ignores the majority holding of this court in Wood v. University Medical Center that "most, if not all, of [article I] rights have generated some form of heightened judicial serutiny" and that "[nlotwith-standing the presumption of constitutionality we give to statutes, this court has consistently applied various forms of heightened review when article I rights are at issue." 2002 UT 134, ¶¶ 37-46, 67 P.3d 486. Under the proper standard of review, this statute fails. Because that result is required under sections 10 and 11 of article I, and under article V, I will discuss only the issues raised under those provisions.
I. REMEDY BY DUE COURSE OF LAW
T43 This court has analyzed section 11 claims using a "balancing" approach. Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 683 (Utah 1985). In Berry, as we later explained, we determined that legislative attempts to abrogate section 11 rights should "be closely examined by this Court and struck down when the disability they seek to impose on individual rights is too great to be justified by the benefits accomplished or when the legislation is simply an arbitrary and impermissible shifting of collective burdens to individual citizens." Condemarin v. Univ. Hosp., 775 P.2d 348, 358 (Utah 1989).
44 The collective burden this statue imposes on individual citizens is significant. To be clear about the nature of the capped damages at issue, noneconomic damages are real; they are intended to compensate victims of negligence for such things as chronic pain, disfigurement, and (as in this case) the loss of a normal life. The suggestion that they are somehow "soft" damages, or less quantifiable than economic damages, is, in my view, a red herring. Projected earnings and costs of future treatment and care, to name two typical elements of "economic" damages, are by no means exempt from uncertainty and the need for guesswork by juries (who regularly hear extensively from competing experts on these questions). Once one acknowledges the fact that noneconomic damages, fully as much as economic ones, are truly compensatory, not "extras" or "freebies," for individual injured plaintiffs, the degree of the legislature's invasion of an individual's right under section 11 to a remedy is apparent.
145 Furthermore, I regard as extremely problematic the majority's wholesale acceptance of the rationale that, because damage awards for noneconomic damages are unpredictable, they are more acceptable targets for legislative diminution or destruction. The unpredictability of a jury's determination of the value of all losses, including noneconomic losses, has been, from the earliest beginnings of our tort system, an essential part of the deterrent function of tort law. One need go no further than the Ford Pinto case, where the evidence disclosed that Ford Motor had actually calibrated the relative costs of fixing its defective cars versus paying a few adverse verdiets-and opted to pay the verdicts-to be confronted with the flaw in the predictability argument. Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 174 Cal.Rptr. 348, 360-62 (Ct.App.1981).
146 Lastly, the majority opinion takes insufficient account, I believe, of the arbitrary method by which the statute distributes the cost of its solution to the so-called malpractice crisis. The most seriously harmed plaintiff is likely to receive the smallest fraction of his or her actual damages, while the less injured are likely to receive much higher, or even total, compensation for the injuries they suffer. A more graphic illustration of the "impermissible shifting of collective burdens to individual citizens," Condemarin, 775 P.2d at 358, is hard to imagine, and it is the most vulnerable and voiceless citizens who bear the brunt of this shift.
T47 Against this extreme cost to the few victims whose injuries and suffering are severe and perhaps (as with this plaintiff) lifelong is to be considered the legislature's rationale for inflicting such damage on individual rights. The majority defers entirely to the legislature's "fact-finding" process and cites rather extensively to specific sources supporting the legislature's conclusions that high jury verdicts are the major cause of high medical malpractice premi*147ums. This conclusion is entirely inconsistent with Utah's long experience with juries in these cases. . Utah juries are demonstrably reluctant to award high pain and suffering awards. In fact, according to the most recent statistics from the National Practitioner Data Bank, Utah ranks fifticth among all the states and the District of Columbia in the median size of verdicts awarded in malpractice cases. This fact undermines the notion that jury verdicts have anything to do with premiums in this state. N.P.D.B. Ann. Rep. thl9 (2002), available at http://www. npdb-hipdb.com,/pubs/stats/2002_NPDB_Annual Report.pdf. While we owe deference to legislative judgments on policy questions generally, we do not grant immunity to constitutional review on the basis of legislative assertions of "fact" that have no demonstrated basis in reality. No one would claim, for example, that if the legislature "determined," contrary to well-established scientific evidence, that childhood vaccinations caused autism, it could properly impose negligence liability on medical practitioners administering the vaccines.
T 48 In addition to its uncritical acceptance of the legislature's perceptifm that high jury verdicts in Utah are the cause of the problem this statute purports to address, the majority fails to acknowledge the numerous recent studies attributing rises in insurance premiums to phenomena within the insurance industry itself, rather than to the size of jury verdicts. See app. A. Discussing his landmark Harvard study on medical malpractice, Paul Weiler notes the critical limitations of available evidence in determining the relationship between medical malpractice litigation and insurance premiums and the inherent unfairness and high social cost of damage caps as a response in the absence of any showing of their effectiveness. Paul Weiler, Medical Malpractice on Trial 7-16, 56-61 (1991); see also Thomas B. Metzloff, Understanding the Malpractice Wars, 106 Harv. L.Rev. 1169, 1177-87 (1993) (book review). Weiler's New York-based study was reproduced in Utah and Colorado with significantly similar results. David M. Studdert & Troyen A. Brennan, Beyond Dead Reckoning: Measures of Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models from Utah and Colorado 33 Ind. L.Rev. 1643, 1677 (2000). Another author points out that emerging data severely undermine the traditional view of the causes of the so-called medical malpractice "crisis":
As much as the [traditional] hypothesis concerning the roots of the malpractice crisis makes intuitive sense, recent studies have shown that it is simply not accurate. Rather, these studies (discussed below) demonstrate that it is the economy, and not an increase in litigation, which accounts for the various malpractice crises. However, these studies go fiirther and attack the traditional perspective as rhetoric propagated by the insurance industry and foisted upon the medical community and public as an excuse for skyrocketing rates.... e |
These studies, performed by a coalition of nearly 100 consumer groups around the country entitled "Americans for Insurance Reform" ("AIR"), are perhaps most surprising for their conclusion that there has historically been no relation between malpractice payouts and premiums. Contrary to the cause and effect supposition discussed above, the AIR studies found that over the past thirty years, the amount that medical malpractice insurers have paid out (including jury awards as well as settlements) diréctly tracks the rate of medical inflation. Thus, despite the alarms rung as a result of the breakdown of the traditional doctor-patient relationship and the increased media attention paid to medical mistakes and jury verdicts, this has not translated to a resulting explosion in payouts to medical malpractice claimants.
Premiums, the studies found, are a different story. Rather than correspond to payouts, they rise and fall in direct relation to the state of the economy. More specifically, premiums rise when interest rates fall. Examining the two prior malpractice crises (which occurred in the mid 1970s and mid 1980s respectively), the studies found that the crises occurred during years of a weakened economy and falling interest rates. Although each crisis *148brought attempts at malpractice reform in many states, it only subsided when the economy finally recovered and interest rates rose.[2]
Mitchell J. Nathanson, It's the Economy (and Combined Ratio), Stupid: Examining the Medical Malpractice Litigation Crisis Myth and the Factors Critical to Reform, 108 Penn. St. L.Rev. 1077, 1081-82 (2004).
149 Given the extensive debate and the lack of empirical or expert consensus on the cause of increasing insurance costs, the legislature, however persuaded it may be by one set of assertions, may not properly deprive individual victims of their constitutional right to receive jury-determined compensation for their losses in the absence of overwhelming evidence that the public interest can only be protected by the deprivation. Such a state of affairs currently does not exist; indeed, many thoughtful experts have propounded numerous responses to the situation that would involve no infringement of constitutional rights of citizens. See, e.g., Weiler, supra, at 93-161; see also sources referenced in appendix B. The insistence of our past Jurisprudence in this area that the legislature provide some substitute remedy, some quid pro quo, speaks to the high burden borne by those who seek to justify a statute like this. That burden has not been met here. In essence, the majority concludes that the constitutional rights at issue here are so negligible that any "reasonable" need identified by the legislature is sufficient to permit their destruction. I disagree. As we said in Berry, the basic purpose of article I, section 11 is "to impose some limitation on that power for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid." 717 P.2d at 676.
II. RIGHT TO JURY TRIAL
T50 Article I, section 10 of the Utah Constitution guarantees the right to a jury trial in civil cases. The majority suggests that this guarantee does not protect the right to benefit from the result of a jury trial, but only the process of having one. On this theory, the legislature could establish maximum (or minimum) recoveries in virtually every civil case without implicating the nature of the underlying right to jury trial. Such an argument, in my view, is absurd. Thomas Jefferson said, "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." 3 The Writings of Thomas Jefferson 71 (H.A. Washington ed., 1861), quoted in Parklane Hosiery v. Shore, 439 U.S. 322, 344 n. 10, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting). Speaking of the jury's fundamental role in our legal structure, the United States Supreme Court has observed: "The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to the judiciary." Parklane, 439 U.S. at 343, 99 S.Ct. 645. Even earlier, in 1985, the Court stated that "[mJaintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be seruti-nized with the utmost care." Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603 (1935).
51 In International Harvester Credit Corp. v. Pioneer Tractor & Implement, Inc., 626 P.2d 418 (Utah 1981), we described the institution of civil jury trial as "deeply rooted in our basic democratic institutions and so important in the administration of justice, not only as a buffer between the state and the sovereign citizens of the state, but also as a means for rendering justice between citizens." Id. at 420. Of what use is such a right if the legislature has the power to nullify the jury's function by imposing arbi*149trary limits on the jury's impact on the result of a case? Presumably, if the legislature declared that, in actions for defamation, any damages awarded by the jury should be reduced to the sum of $1.00, the majority, under its logic here, would uphold the statute as not affecting the right to a jury trial. Likewise, I suppose, if the legislature enacted a statute providing that whenever a jury returned a verdict for plaintiffs in any tort action, the verdict was to be reduced to zero and the claim dismissed, the majority might conclude that the trial court was merely applying the "law" to a jury finding rather than intruding on the process of a jury trial in violation of the Utah Constitution.
T52 This court declared as early as 1896 that the determination of damages, including noneconomic damages, is part and parcel of the function of the civil jury:
'The amount which the injured party ought to recover is referred to the sound discretion of the jury; and the elements or factors which should be taken into consideration are the plaintiff's injured feelings and tarnished reputation, the nature of the imputation, and the character, condition, and influence of the parties as they may be shown by the evidence.
Fenstermaker v. Tribune Publ'g Co., 13 Utah 532, 45 P. 1097, 1099 (1896).
{ 53 It is thus clear that the constitutional right to a jury trial fully included the jury's determination of damages. "In cases of tort, like the one at bar, it is one of the fundamental principles of the law that the injured party is entitled to recover fair and adequate compensation" in the form of damages. Rosenthal v. Harker, 56 Utah 113, 189 P. 666, 667 (1920). And, "[wlhen the matter of damages is in dispute, it is an issue upon which the parties are entitled to a jury trial, the same as on other disputed issues of fact." Mel Hardman Prods., Inc. v. Robinson, 604 P.2d 913, 918 (Utah 1979). "The amount to be awarded in a particular case is a question to be determined by the jury according to the particular facts and circumstances, under appropriate instructions given by the court." Rosenthal, 189 P. at 667.
1 54 Our constitution thus protects as invi— olate the right to a jury trial. That right includes, as Fenstermaker makes clear, the power to determine noneconomic damages. 45 P. at 1099. By the enactment of so-called "caps" on compensatory, damages, the legislature has attempted to substitute a "one-size-fits-all" level of compensation for serious injuries, regardless of the particular facts and circumstances of individual cases.
1 55 The Washington Supreme Court, construing a similar provision in its constitution, concluded that " '[tlo the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts- and the amount of damages in a particular case is an ultimate fact.'" Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 716-17 (1989) (quoting James v. Robeck, 79 Wash.2d 864, 490 P.2d 878, 881 (1971)). "The jury's role in determining noneconomic damages is perhaps even more essential." Id. The Sofie court went on to point out that
in Kansas, Texas, Ohio, and Florida, states that have found the damages limit unconstitutional, the operative language of the right to jury trial provisions in those states' constitutions [as in Utah's] is nearly identical to our own. Cases upholding damage limits either have not analyzed the jury's role in the matter or have not engaged in the historical constitutional analysis used by this court in construing the right to a jury.
Id. at 723 (citations omitted). Sofie got it right.
T 56 Softie also got it right when it distinguished Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525, 529 (1989), on which the majority relies here:
[The dissent] cites with approval the recent case of Etheridge, but ignores the greater number of cases from other jurisdictions that support our [majority's] position. In making this oversight, [the dissent] also omits the fact that four courts whose decisions support [the majority's] holding-Texas, Kansas, Ohio, and Florida-base their decisions on state constitutions with operative language nearly identical to our own. Moreover, the Virginia constitution, upon which Etheridge is based, contains language quite different *150from ours or of the other states mentioned above. The Etheridge opinion is also poorly reasoned. After conceding that the "jury's fact-finding function extends to the assessment of damages," the court finds that a "trial judge applies the remedy's limitation only after the jury has fulfilled its fact-finding function." Thus, supposedly, the limitation does not infringe on the jury's function.
As this court [has] stated ...: "The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. . . ." In other words, a constitutional protection cannot be bypassed by allowing it to exist in form but letting it have no effect in function.
Sofie, 771 P.2d at 724 (citations omitted).
1 57 Since Sofie was decided, Alabama and Oregon, also states with constitutional language similar to ours,3 have followed the same rationale as Sofie in striking damage caps. Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 164 (Ala.1991); Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463, 473 (1999).
158 The appellee in this case has argued that the availability of judicial remittitur undermines the notion that the right to jury determination of damages is part of a constitutionally inviolate guarantee. I will deal with remittitur in the following section, which focuses on separation of powers, but once again reference the Washington Supreme Court's treatment of this argument in Sofie: (1) Remittitur belongs to the judicial branch and is applied only after careful, case-specific review of the evidence; it is not an arbitrary, automatic, sweeping legislative reduction of damages. (2) There are well-developed guidelines for the imposition of remittitur, requiring strong presumptions in favor of jury verdicts. These guidelines require that the verdict be wholly unsupported by the evidence, motivated by passion or prejudice, or shocking to the court's conscience. (@) Perhaps most critically, the opposing party in cases of remittitur has the choice of accepting the reduction or seeking a new trial. Sofie, 771 P.2d at 720-21. The legislative cap includes none of these protections designed to give maximum deference to jury verdicts.
1 59 In Condemarin, I left open the question, not before us in that case, whether a damage cap on noneconomic damages could survive constitutional scrutiny under article I, section 10. 775 P.2d at 366 (opinion of Durham, J.). I now conclude that it cannot. The legislature has improperly invaded the right to jury trial of plaintiffs with noneco-nomic damages by rendering jury verdicts irrelevant in cases where the harm to victims of negligence is greatest.
III. SEPARATION OF POWERS
60 As noted above, the power to reduce jury verdicts, under certain limited cireum-stances, has always belonged to the judicial branch of government. The doctrine of re-mittitur-the process by which the damages awarded by the jury are reduced-has been an inherently judicial power for almost two centuries. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 483, 55 S.Ct. 296, 79 L.Ed. 603 (1935); Hansen v. Boyd, 161 U.S. 397, 412, 16 S.Ct. 571, 40 L.Ed. 746 (1896). In Dimick the Court carefully examined the origins of remittitur in the English common law and in American law. It observed that, "since the decision of Mr. Justice Story in 1822, this court has never expressed doubt in respect of the rule, and it has been uniformly applied." 293 U.S. at 483, 55 S.Ct. 296. The Court also noted that remittitur of an excessive jury *151verdict is a question of law for the court. Id. at 486, 55 S.Ct. 296.
[ 61 Utah courts have recognized and practiced remittitur since at least 1888. Crookston v. Fire Ins. Exch., 817 P.2d 789, 804 n. 16 (Utah 1991). Utah law allows a court to reduce the jury's award of damages if "[sluch an award is so excessive as to be shocking to one's conscience and to clearly indicate passion or prejudice, and it abundantly appears that there is no evidence to support or justify the verdict." Stamp v. Union Pac. R.R. Co., 5 Utah 2d 397, 303 P.2d 279, 282 (1956). Remittitur serves as a check on the jury system and promotes both the administration of justice and the conclusion of litigation. Id. at 283.
62 This court has emphasized, however, that "[jluries are generally allowed wide discretion in the assessment of damages." Cruz v. Montoya, 660 P.2d 723, 726 (Utah 1983). There is no set formula to determine noneco-nomic damages such as pain and suffering, so "* '[tlhe permissible minimum and maximum limits within which a jury may operate for a given injury are presently far apart and must continue to be widespread so long as pain and suffering must be measured by money standards. " Stamp, 303 P.2d at 282 (quoting Duffy v. Union Pac. R.R. Co., 118 Utah 82, 218 P.2d 1080, 1084 (1950). The absolute right to a jury determination of civil damages and its importance have already been discussed.
T63 Historically and at present, trial courts are given deference in permitting re-mittiturs because the trial judge is present during all aspects of the trial and can therefore best determine whether the jury acted with "passion or prejudice" in awarding damages. Crookston, 817 P.2d at 804. The trial judge is not given absolute discretion in allowing a remittitur; he "must be able to articulate a reasonable basis for the inappropriateness of the verdict" and must adhere to the limitations set forth in Stamp. Id. at 813 n. 31. The deference given to a jury verdict and trial judge because of their unique perspective during the presentation of the case is evidence that remittiturs should be considered and granted on a case-by-case basis where abundant evidence of passion or prejudice exists. By mandating a unilateral damage cap in all medical malpractice cases, the legislature has ignored the specific noneco-nomic injuries present in each case, disregarded the deliberation of the jury in the context of the evidence, and discriminated against the most severely injured plaintiffs.
T64 The damage cap essentially functions as a "legislative remittitur," undercutting the responsibility and power properly belonging to the judiciary to determine whether a jury's verdict is excessive. Best v. Taylor Mach. Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057, 1079-80 (1997). As such, the cap is simply a "legislative attempt to mandate legal conclusions" and clearly violates the separation of powers provision. Sofie, 771 P.2d at 721.
T65 Even trial courts, with full judicial authority, do not have the power to remit damages without the consent of the parties. An important condition to the remittitur of a jury verdict is the consent of both parties to the reduced amount. If one or both of the parties refuse to accept the remittitur, "he or she may, elect to retry the matter." Crookston, 817 P.2d at 813. The legislative damage cap thus forces plaintiffs to forego fully-determined jury awards as well as their right to opt for a new trial in lieu of the remittitur. See Paul B. Weiss, Reforming Tort Reform: Is There Substance to the Seventh Amendment?, 38 Cath. U.L.Rev. 737, 756-57 (1989).
I 66 The judicial power "to hear and-determine controversies between adverse parties and questions in litigation" includes essential and primary functions regarding damages such as remittitur. Timpanogos Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist., 690 P.2d 562, 569 (Utah 1984) (quoting Citizens' Club v. Welling, 83 Utah 81, 27 P.2d 23, 26 (1933). As the majority opinion states, "[the power to declare what the law shall be is legislative. The power to declare what is the law is judicial." Ritchie v. Richards, 14 Utah 345, 47 P. 670, 675 (1896) (Barch, J., concurring). But the judicial branch also has the power and duty to invalidate laws enacted by the legislature that are unconstitutional, including those acts that violate the separation of powers doctrine defined in article V, section *1521. In re Handley's Estate, 15 Utah 212, 49 P. 829, 830-31 (1897). The damage cap represents more than simply law to be applied; it is an unconstitutional attempt by the legislature to exercise by statute the inherently judicial function of remitting noneconomic damage awards. This it may not do.
CONCLUSION
167 Notwithstanding the preeminent role in policymaking that belongs to the legislature, this court's responsibility to uphold the individual rights guaranteed by the Utah Constitution requires us from time to time to scrutinize legislative choices regarding the implementation of policy to ensure that they do not violate those rights. The mandatory cap on noneconomic damages contained in Utah Code section 78-14-7.1 violates the right to a remedy for personal injury under article I, section 11 and the right to a jury trial under article I, section 10 of the Utah Constitution. It also violates the fundamental principle of separation of powers by invading the province of the jury in a manner that belongs historically and inherently to the judiciary.
T 68 Justice NEHRING concurs in Chief Justice DURHAM's dissenting opinion.APPENDIX A
Press Release, Sen. Edward M. Kennedy, Statement in Opposition to the Medical Malpractice Amendment (July 26, 2002), available at http://www.senate.gov/~kenne-dy/statements/02/07/2002730306.html.
Harming Patient Access to Care: The Impact of Excessive Litigation: Hearing Before the House Subcomm. on Health of the Comm. on Energy and Commerce, 107th Cong. (2001) (statement of Travis Plunkett, Legislative Director, Consumer Fed'n of America).
Americans for Insurance Reform, Medical Malpractice Insurance: Stable Losses/Unstable Rates 2004, at 3-8, available at http://www.centerjd.org/air/StableLogs-es04.pdf.
Congress Watch, Medical Misdiagnosis: Challenging the Malpractice Claims of the Doctors' Lobby (20083), http://www.citizen.org. available at
Patricia M. Danzon, Medical Malpractice: Theory, Evidence, and Public Policy 108-07 (1985).
Jean Hellwege, Med-Mal Caps in Two States Don't Reduce Insurance Rates, Trial, Feb. 2004, at 14-16.
J. Robert Hunter & Joanne Doroshow, Premium Deceit: The Failure of Tort Reform to Cut Inswrance Prices (1999), available at http://www .insurance-reform.org/Premium-Deceit.pdf.
Sylvia Law & Steven Polan, Pain and Profit: The Politics of Malpractice 161-64 (1978).
Frank M. McClelian, Medical Malpractice: Law, Tactics and Ethics 76 (1994).
U.S. Gov't Accountability Office, Medical Malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates 8-10 (2003), available at http:// www.gao.gov/new.items/d04128t.pdf.
Paul C. Weiler, Medical Malpractice on Trial 8-11 (1991).
Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation 3 (1993).
Jay Angoff, The Truth About Med-Mal Pre-maums: A Former Insurance Commissioner Explains How the Current "Crisis" Came to Be and What We Can Do About It, Trial, May 2004, at 36-48.
Thomas P. Breutsch, The Legislature "Caps" the Jury: Damage Caps and the Michigan Constitution, 1 J.L. Soc'y 151, 177-78 (1999).
Patricia J. Chupkovich, Statutory Caps: An Involuntary Contribution to the Medical Malpractice Insurance Crisis or a Reasonable Mechanism for Obtaining Affordable Health Care?, 9 J. Contemp. Health L. & Pol'y 387, 340 (1993).
Nancy L. Manzer, 1986 Tort Reform Legislation: A Systematic Evaluation of Caps on Damages and Limitations on Joint and Several Liability, 73 Cornell L.Rev. 628, 629-32 (1988).
David J. Nye & Donald G. Gifford, The Myth of the Liability Insurance Claims Explosion: *153An Empirical Rebuttal, 41 Vand. L.Rev. 909, 922 (1988).
Kathleen E. Payne, Linking Tort Reform to Fairness and Moral Values, 1995 Detroit C.L.Rev. 1207, 1221-24.
Frank A. Sloan, State Responses to the Mail-practice Insurance "Crisis" of the 1970's: An Empirical Assessment, 9 J. Health Pol. Pol'y & Law 629 (1985).
Martin D. Weiss et al., Medical Malpractice Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage 5-6 (2003), available at http://www.weissrat-ings.com/MedicalMalpractice.pdf.
Rachel Zimmerman & Christopher Oster, In-swrers' Price Wars Contributed to Doctors Facing Soaring Costs, Wall St. J., June 24, 2002, at A1.
APPENDIX B
Congress Watch, Medical Misdiagnosis: Challenging the Malpractice Claims of the Doctors' Lobby (2008).
Institute of Medicine, To Err Is Human: Building a Safer Health System 3-6 (Linda Kohn et al. eds., 1999).
Sylvia Law & Steven Polan, Pain and Profit: The Politics of Malpractice 206-14 (1978).
Am. Law Inst., Reporters' Study, 2 Enterprise Resp. For Personal Injury (1991).
Paul C. Weiler, Medical Malpractice on Trial 115-16 (1991).
Am. Med. Ass'n, Report 85 of the Board of Trustees 3 (2002), available at http://www. ama-assn.org/amal/upload/mm/annu-al02/bot85a02.rtf.
Mitchell J. Nathanson, It's the Economy (and Combined Ratio), Stupid: Examining the Medical Malpractice IAitigation Crisis Myth and the Factors Critical to Reform, 108 Penn. St. L.Rev. 1077, 1078-82 (2004).
Kathleen E. Payne, Linking Tort Reform to Fairness and Moral Values, 1995 Detroit C.L.Rev. 1207, 1244.
David M. Studdert & Troyen A. Brennan, Beyond Dead Reckoning: Measure of Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models from Utah and Colorado, 88 Ind. L.Rev. 1643, 1671-76 (2000).
Martin D. Weiss et al., Medical Malpractice Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage 5-6 (2003), available at http://www.weissrat-ings.com/MedicalMalpractice.pdf.
. The separation of powers requirement is found in article V of the Utah Constitution. The other rights listed are protected in the "Declaration of Rights," article I of the Utah Constitution.
. I am aware that the majority opinion has cited studies supporting contrary inferences from the data. That fact illustrates my point. How are the courts to fulfill their roles as guardians of the rights guaranteed in our constitution when the legislature posits certainty where it obviously does not exist, relies on that so-called certainty as a basis for contravening those rights, and then demands deference to its enactments?
. Article I, section 10 of the Utah Constitution states:
In capital cases the right of trial by jury shall remain inviolate. ... In other cases, the Legislature shall establish the number of jurors by statute, but in no event shall a jury consist of fewer than four persons. In criminal cases the verdict shall be unanimous. In civil cases three-fourths of the jurors may find a verdict. A jury in civil cases shall be waived unless demanded.
Utah Const. art. I, § 10. While the language in this provision is less straightforward than the respective right to jury trial provisions in the constitutions of Alabama, Washington, and Oregon, its use of the word "inviolate" is important. Cf. Ala. Const. art. I, § 11; Or. Const. art. I, § 17; Wash. Const. art. I, § 21. This court has stated that the right to jury trial is considered inviolate in criminal and civil cases as well. See State v. Black, 551 P.2d 518, 520 (Utah 1976); Int'l Harvester Credit Corp., 626 P.2d at 419-20.