Sometimes we get so caught in the specifics of this bill or that bill, that we forget what’s behind all of them: an orchestrated 40-year corporate campaign to obtain control over the civil justice system. Taking power away from juries. Electing anti-consumer judges. Eliminating liability for corporate wrongdoing. Keeping injured victims out of court. It's all part of the same cruel, anti-democratic and anti-free market movement known as “tort reform.” And for those who want to learn more, there are some great new materials out there.
Professor Andrew F. Popper, Bronfman Professor of Law at American University Washington College of Law, has just published the second edition of his book, Materials on Tort Reform. As reported in TortsPro Blog, “In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner.” This isn’t a book just for law students or faculty members. It’s a great read for anyone curious about it all.
Then, there's this new published and fully-sourced on-line piece by Billy Corriher, deputy director of Legal Progress at the Center for American Progress. The piece leads with an analysis of a U.S. House of Representatives bill passed on June 28 – H.R. 1215 – “that would erect steep hurdles for injured patients looking to hold health care providers accountable for medical malpractice.”
But then, the article talks about where this bill fits into the larger “tort reform” movement, including the link to Big Tobacco:
The Seventh Amendment to the Constitution states that “the right of trial by jury shall be preserved.” Commenting on the right to a trial by jury, John Adams said that Americans have “no other indemnification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”
Corporations that don’t like being sued bankroll tort reform efforts
The medical and insurance industries launched a movement in the 1980s to limit lawsuits, and the so-called tort reform movement gained momentum when Big Tobacco got involved after facing massive lawsuits for its poisonous, addictive products. A 1986 memo from the Tobacco Institute laid out a plan for creating groups that appeared to be grassroots-driven but were actually “coordinated” by Big Tobacco.
There's so much more interesting stuff, so do check out the whole article.
And finally, for a fascinating “where are we now” overview, Joe Palazzolo at the Wall Street Journal this week looked at what this movement seems to have wrought – statistically, at least. Here’s some of what he found:
Fewer than two in 1,000 people—the alleged victims of inattentive motorists, medical malpractice, faulty products and other civil wrongs—filed tort lawsuits in 2015, an analysis of the latest available data collected by the National Center for State Courts shows. That is down sharply from 1993, when about 10 in 1,000 Americans filed such suits.
A host of factors are fueling the decline, including state restrictions on litigation, the increasing cost of bringing suits, improved auto safety and a long campaign by businesses to turn public opinion against plaintiffs and their lawyers.…
Anthony Sebok, a torts professor at Benjamin N. Cardozo School of Law in New York, contends the public perception of tort filings has never matched reality. Even at peak growth in the mid-1980s, tort cases amounted to about 20% of civil filings in state courts, on average.
“We as a society seem to be OK with plaintiffs when they are debt collectors coming in and using the court system more than they used to, but we somehow instinctively think it’s a bad thing when victims of accidents come in and do the same thing,” he says.…
More than 30 states have capped damages in medical malpractice or other cases since the 1970s, according to the Center for Justice & Democracy, a group that opposes such laws.
In other words, “tort reform,” in one of its various cruel shapes and sizes.