Shutting the Courtroom Door: How the Corporate Right Mobilized in the States
A repost from Progressive States that illustrates why I think progressives pay way too little attention to state policy. While there's been a lot of national attention on the whole "tort reform" debate, this week's cover story at Business Week, , How Business Trounced The Trial Lawyers, declares nearly complete victory for the business lobby in shutting the courtroom door to victims of corporate negligence. Big money was used to hijack state policy, making changes at the federal level nearly irrelevant.
What happened? Read beneath the fold:
Changing State Policy: The first step was corporate lobbies recognizing that state policy mattered more than federal policy. After ignoring state policy for many years, "by the mid-'90s, national groups like the U.S. Chamber of Commerce and the American Tort Reform Assn. realized...'that the greatest return on investment is at the state level.'" This quickly led to vastly more money spent in the states than by defenders of consumer rights and changes in state law that left injured consumers and workers with few options for legal redress:
- Courthouse doors have slammed shut on a wide variety of claims. Michigan, for example, has virtually wiped out all lawsuits against drugmakers in the state.
- Six states have passed laws seriously restricting the kinds of asbestos suits that can be filed, and 23 now have statutes saying you can't sue the likes of McDonald's for making you fat.
- The American Lawyer, an influential trade publication, recently declared an end to the era of mass-injury class actions...As for class actions in Texas, a series of judicial rulings has set the bar so high for a judge to approve them that it's effectively impossible to meet, practitioners say.
- Damage limits in many states have rendered medical malpractice litigation nearly comatose.
- Georgia, for instance, limits punitive damages to $250,000, unless "the defendant acted with a specific intent to harm," and New Hampshire bars them altogether.
- The far-ranging changes passed by Texas lawmakers in 2003 included one that bars injury suits against a seller more than 15 years after a product is sold. One result: After a doctor was decapitated by a Houston hospital elevator in August, 2003, no suit could be filed against the manufacturer, since the elevator was too old.
Taking over the courts. Bush's political advisor, Karl Rove, was a key player in mobilizing business lobbies to intervene in judicial elections. "By 1998, had converted the makeup of the Texas Supreme Court from 100% Democratic to 100% Republican. He played a similar role in flipping Alabama's high court." "In 2004, for example, business groups spent $21.5 million on state supreme court elections, eclipsing the amount spent by plaintiffs' attorneys and their allies ($13.3 million)." The result:
- The Alabama Supreme Court reversed 27 of 31 plaintiffs' verdicts during its 2004-05 session.
- According to Texas Watch, an Austin consumer advocacy group, of the 69 consumer cases accepted for appeal by the Texas Supreme Court during its 2005-06 term, it decided against the consumer in 57, or 83%, a trend Texas Watch says has been consistent for the past six years.
- "When you have a large verdict that you receive from a jury, you can't settle the case anymore because the defendants will walk in and say: We know we're going to win in the Supreme Court," says Frederick M. Baron, a Dallas attorney.
So What About the Benefits of "Tort Reform"? The business lobby has won the battle for "tort reform", so where are all the promised benefits? Remember when people said tort reform would slash health insurance costs? Instead, as a 2005 Economic Policy Institute paper detailed, the costs of medical malpractice were always overblown by "tort reform" lobbyists and health care costs continue to rise across the country. Texas was a leader in slashing injured patient rights, yet it remains the state with the highest number of uninsured in the country with family health insurance policy rates rising at a rate nearly three times faster than wages and inflation.
The only thing that has changed in the wake of "tort reform" are escalating corporate profits at the expense of consumer and workers' pocketbooks -- a triumph of using lobbying power to rob from working families to benefit the wealthy. And this was done nearly solely with changes in state policy-- highlighting why state politics matters so much for large areas of social justice.
I have a question about tort reform. Why is it not unconstitutional? Does it not abridge the right of the people to petition the government for a redress of grievances?
January 4, 2007 2:25 PM | Reply | Permalink
I suppose that they bottom line was: the government was unable to enforce it's verdicts. The Iraq War is the only "victory" (a military industrial complex man-slaughter) that they, the government, can give us.
That's why the Wal-Mart piece you posted made me sick! The corrupted capitolism we have is low-price and, yes, we need to talk about the high price of low-price. The bible uses a great metaphore of "locusts" to describe plundering.
I think DOW chemical, when shrugging off the "Bhopal Spill," was quite elegant when they suggested: "if we take responsibility for this, we'll cease to exist."
And that's why Rove and others probably shut down the courts, they just don't have the resources to enforce the kind of sentencing that companies like DOW deserve.
While people accuse Bush of ignoring Global Warming, for example, the movie "inconvienient truth," etc..., reminds us that "Global Warming was a known problem years ago," even when Gore was a graduate student.
Hopefully, our courts will find a way to adjudicate the "real problems" and burn away the shaft...
January 4, 2007 2:44 PM | Reply | Permalink
Torts are civil matters not governmental ones.
Daniel A. Greenbaum
January 4, 2007 4:35 PM | Reply | Permalink
Yes, but why does that abbrogate that right?
January 4, 2007 5:34 PM | Reply | Permalink
What right? There is no right to redress of civil wrongs. There is a long standing legal system designed to enforce contracts and provide both equity and monetary compensation. There is no right to this but a choice.
Daniel A. Greenbaum
January 4, 2007 5:57 PM | Reply | Permalink
This is a joke, right?
When a plaintiff sues in court for a defendant's allegedly tortious act, it is a governmental matter. The state (i.e., the government, via the legislature) can choose to expand or contract the rights to recover for allegedly tortious behavior, and, as the original post indicates, in many cases it has chosen to do so.
January 5, 2007 5:09 AM | Reply | Permalink
Dan's legally correct, and I don't see that undermines Nathan's anger. Petitioning for government action is not the same as suing in court. You've the right to petition the Bush administration and Congress to make something a crime or to legalize it. But if they do one or the other, that in and of itself doesn't abrogate the right to petition.
It may abrogate other rights to go to court. Say, Bush can't legally take away your right to habeus corpus, whatever his slimy defenders say. But it's not because habeus corpus derives from the First Amendment.
In effect, what the Bush administration has done is legalize corporate criminial negligence. He may have done so contrary to legislation, in which case it's abuse of power. He certainly has done something that must be stopped. But it's akin to legalizing theft and has little to do with civil liberties.
John
http://www.haberarts.com/
January 5, 2007 8:03 AM | Reply | Permalink
Bev,
DanielGree is correct. The Consitution is only between you and the government. It doesn't define any right between private persons. The 1rst amendment right of petition doesn't give you anything. May be the bill of attainder clause, in a very creative way.
I think there is in facts one tack that would get our corporate overlords to rethink their positions on "tort reform" : to convince local DAs to prosecute the malfeasances under criminal law. When drug corp CEOs end up behind bars for screwing with side effects, things could change.
But, anyway, the whole thing is depressing. This country was founded as a plutocracy. It still is a plutocracy, 200 years later. I don’t see things can change until corporations and assorted malefactors of great wealth are thoroughly barred from politics...
No, you can't have your own facts!
January 6, 2007 1:10 AM | Reply | Permalink
Not exactly correct-- the right to a civil trial before a jury is specified i the 7th Amendment- "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,"
One can argue that judges overturning jury awards is a violation of the Constitution, although the 7th Amendment is largely in disuse, although some state courts have challenged state tort deform laws based on state constiutions that protect the right to civil lawsuits.
January 6, 2007 9:55 AM | Reply | Permalink
The problem here has always been punitive damages and the outlandish amounts awarded by some juries. The business community has used this legitimate concern to push through laws protecting themselves from responsibility for their actions. The underlying problem of punitive damages is, I have always thought, easily fixed.
Take punitive damages away from the jury. Allow the jury to decide the facts of the case as required by the seventh amendment, including the amount of actual damages. Any penalty for shocking behavior should be determined by the judge.
This will not eliminate the problem. You will have judge shopping and jurisdiction hopping just as you do now. It should, however, put an end to the horror stories business uses to drive their effort.
January 6, 2007 11:09 AM | Reply | Permalink
The problem here has always been punitive damages and the outlandish amounts awarded by some juries. The business community has used this legitimate concern to push through laws protecting themselves from responsibility for their actions. The underlying problem of punitive damages is, I have always thought, easily fixed.
Take punitive damages away from the jury. Allow the jury to decide the facts of the case as required by the seventh amendment, including the amount of actual damages. Any penalty for shocking behavior should be determined by the judge.
This will not eliminate the problem. You will have judge shopping and jurisdiction hopping just as you do now. It should, however, put an end to the horror stories business uses to drive their effort, without limiting access to the courts or setting arbitrary limits on damages.
January 6, 2007 11:11 AM | Reply | Permalink
This is ass backwards reasoning. The real problem is that individuals who consider themselves a member of the set, 'business community', usually consider themselves too high and mighty to fulfill their civic duty and actually be jury members. This has the effect of skewing jury pool populations towards jurors who are inclined to punish businesses for what they view as intentional acts of malfeasance. Civil Litigation Specialist attorneys are well aware of this, and will intentionally use their without cause strikes on the very few potential jurors who they believe might be a mitigating factor in punitive damage decisions.
A great majority of the persons who are affected the most by excessive punitive damages arrogantly refuse to participate in a civic duty, which is at the ramparts of a free society's foundations. They are derelicts and cowards. Jury service is an act which should be viewed as an privilege, or at the very least, one bitch of an imperative act. Their solution is to run to the mommy state crying, "we need your help from the unwashed masses", at the same time they viscously attack when the mommy state comes prying into their personal doings. Anyone who actively seeks to avoid jury service, and then complains about jury decisions is a loathsome hypocrite.
MDs and corporate executives seldom sit in jury selection pools. To a lesser degree, the same is true for private business owners, and often, the ones that do are loud complainers about the 'wasted' time of it all, and some will even intentionally answer interrogatives in a manner they know will excuse them for personal prejudices. All of these groups are populated with individuals capable of holding great sway during jury decision processes. They haven't a right to complain, unless they are vigorously exercising their rights after receiving their jury subpoenas.
January 9, 2007 11:38 AM | Reply | Permalink
This has often been portrayed as 'libertarian' by the pretender libertarian think-tanks. It is a good example of how the right-siding of libertarian theory has polluted its current manifestation in America.
What kind of liberty is it that restricts an individual's access to courtrooms in an effort to protect collectivist fictional constructs, corporations? What kind of liberty is it that steals the natural right which humans possess to jury processes, and places them into the hands of elitists, who openly display their fetish for being attired in black satin moo moos? This, of and by itself is antithetical to individual liberty.
The right-siding of the Libertarian Party is the real reason for the disparity between the percentage of Americans who claim they are libertarian in polls, and the percentage of voters who vote for candidates with a Libertarian Party affiliation. All the LP has done for the electoral process is to provide a third option when choosing lesser of evils, and generally, after careful consideration of those clowns, that choice becomes only a throwaway when the other two mainstay evils to choose from are both too repugnant to vote for.
Listen up, damn CATO fools,
there is a libertarian left.
January 9, 2007 11:46 AM | Reply | Permalink