Labels can be deceiving. Just ask the food industry. (What do you mean my 100% “natural” chicken wings really aren’t ?)
Same with political labels. Take conservative Republicans, for example. “Tort reform” is generally considered their issue. (Just google “Which party supports tort reform?”). Historically, the reasons were political, not principled.
Consider, for example, a March 19, 1996, Heritage Foundation meeting about defunding “the left” or the Democratic Party. Michael Horowitz of the Hoover Institute was recorded as saying, “One needs to focus on the purely political side of the money that [no-fault 'tort reform' legislation] takes away from the tort bar.” Since it would reduce lawyers’ income, its passage would “really make a difference in the election, [translating into] real seats in the House, real seats in the Senate ... a real payoff for what the Republican revolution is all about.” Grover Norquist of Americans for Tax Reform said, “If this legislation is passed, people we argue with and fight with next year and five years from now [will be] shorter and less powerful than they are today.” (This was all reported here: Juliet Eilperin and Jim VandeHei, “Newt's Ally Norquist Targets Labor, Lawyers,” Roll Call, February 19, 1998.)
Certainly, the desire by conservative business interests to dramatically reduce the income of the entire trial bar by taking away their clients’ rights had been a major factor behind “tort reform” efforts around the country. But over the years, what these special interests didn’t seem to consider – and what they’re now catching onto - is that conservatives need the courts, too. When they weaken the civil justice system, they weaken their own rights.
Someone who has explained the value of litigation better than almost anyone we've seen in recent years is former Fox News anchor Gretchen Carlson, who sued her former boss for sexual harassment. As we noted before,
Fox News and Roger Ailes argued for months that her sexual harassment case should be buried in secret arbitration and kept out of court. They eventually settled but Carlson is not keeping quiet about this. In a recent Time Magazine cover story, she said: “[F]orced arbitration … is a huge problem. Because it’s secret. And it plays into why we think that we’ve come so far in society and we probably really haven’t—because we don’t hear about it.”
Last month, Carlson continued her efforts in Washington DC to raise awareness about the problem of forced arbitration, which prevents harmed individuals from suing in court. Now, Carlson is speaking out against two Missouri bills that would also limit access to the courts.
One, SB 43, seeks to amend the Missouri Human Rights Act in a way that makes it more difficult for employees to prove claims of discrimination and harassment. It would also cap whistleblower damages. The other, SB 45, makes it harder for employees to challenge the terms of arbitration agreements signed with their employers.
Then there was this extraordinary letter from the House Liberty Caucus, making a strong free-market case against legislation that would obliterate class actions. These conservative members of Congress wrote:
Class action lawsuits are a market - based solution for addressing widespread breaches of contract, violations of property rights, and infringements of other legal rights. They are a preferable alternative to government regulation because they impose damages only on bad actors rather than imposing compliance costs on entire industries. They also help the judiciary by consolidating a multitude of similar cases, which decreases burdens on the already clogged court system. …
None of this is terribly new economic thinking, of course. One might go all the way back to the 1980s when Richard Posner and William Landes supplied a pretty clear free-market economic rationale for the tort system in their book, The Economic Structure of Tort Law. They wrote that the tort system provides deterrence of non cost-justified accidents, and creates economic incentives for “allocation of resources to safety.”
What’s more, federal tort legislation comes with its own set of conservative problems.
It may have taken awhile for the conservative backlash against “tort reform” to begin in a major way. We’re just happy it finally did.