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A Message from the Director
Introduction
The
King of Torts
The
Law Expands
Public
Relations
State Government Relations
Suing
for the State
Justice
for Sale
Federal Government Relations
Expanding Liability
Deputizing
Trial Lawyers
Attacking
Arbitration
The
Anti-Federalist
Congress
Toy
Story
A
Trial-Lawyer Tax Break
Conclusion
Appendix
Other
Resources
Media
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ONLINE
PRESENTATION:
Watch and listen to Jim Copland present his new report
online and listen to special guests Senator Jeff
Sessions, Rep. Lamar Smith, Victor Schwartz, and Edwin
Meese give their remarks on the report.
PRESS RELEASE >>
PODCAST
Listen
to Howard Husock, Vice President for Policy Research
at the Manhattan Institute, interview Jim Copland on
Trial Lawyers Inc.: K Street
OP-EDS
Lawyers' Lies and
the Lying Lawyers Who Tell Them, James Copland Townhall.com, 02-23-10
Trial Lawyers Still Love Specter, James Copland,
Pittsburgh-Post-Gazette, 02-15-10
Trial
Lawyers: Democrats' Other Money Machine, James Copland,
Washington Examiner, February 10, 2010
How
the Plaintiffs Bar Bought the Senate, Wall Street
Journal, James Copland, 02-09-10
EDITORIAL
Why Liberals Are Lawyers' Puppets, The
Washington Times, 2-17-10
RADIO
KOA's "The Mike Rosen Show"
Blog Talk Radio's "Take AIM"
WLW's "The
Bill Cunningham Show"
WIBA's "Upfront
with Vicki McKenna"
Talk Radio Network's "America's
Morning News"
WBAL's "C4 Show"
Radio Free Washington
WVON's "The Charles Butler
Show"
WBT's "The Tara Servatius
Show"
WTOP's Federal
News Radio
TELEVISION
Fox News "Strategy Room"
IN
THE PRESS
U.S. Sen. Richard Durbin
(D-Trial Lawyers), The Madison St. Clair Record, 2-21-10
Plaintiffs Bar Buys the Senate,
John Stossel, Fox Business, 2-9-10
Conservative
Group Rates Trial Bar as Most Influential, The
Hill, 2-10-10
Why
Not Tort Reform?, Waterbury Republican American,
2-10-10
The
Litigation Lobby, Revealed, Shopfloor.com,
2-10-10
Plaintiffs
Bar Buys the Senate John Stossel, Fox Business,
2-9-10
Manhattan
Institute Probes Lobbying Efforts of Lawyers, John
O'Brien, Legal Newsline, 2-9-10
Report
Criticizes Influence of Plaintiffs' Lawyers, David
Ingram, Blog of the Legal Times, 2-9-10
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CONCLUSION
PUSHING BACK
Achieving Meaningful Liability Reform Is Difficult but Not Impossible
The academics and judges who transformed American tort law and civil procedure
in a relatively brief period of time did not anticipate the full consequences
of the changes they wrought, though they received fair warning from a few of
their colleagues that some of the changes would prove calamitous.[272]
Even defensible expansions of liability had the unhappy effect of creating a
litigation industry that has depressed economic growth and impeded American
competitiveness. As Harvard Business School professor Michael Porter has observed,
the competitive advantage of U.S. companies is hampered by a tort-law system
that is “extreme compared [with that of] other nations” because “[t]he
risk of lawsuits is so great and the consequences so potentially disastrous.”[273]
 Reforming
the liability system should be a political priority, especially in a deep recession
like the present one, with double-digit unemployment, but it has proved difficult,
given the litigation lobby’s clout. Last fall, former Democratic National
Committee chairman Howard Dean candidly admitted, “The reason why tort
reform is not in the [health-care reform] bill is because the people who wrote
it did not want to take on the trial lawyers.”[274]
In December, the president of the trial lawyers’ lobbying group, the American
Association for Justice, declared the organization’s lobbying effort on
health care “a stunning victory,”[275] as well
he should have: neither the House nor Senate health-care bills dared to tackle
liability reform, and the version that passed the House contained provisions
that, perversely, would impede liability reform (by discouraging state
reforms adverse to the litigation industry’s interests)[276]
and expand litigation opportunities (by empowering state attorneys general
to enforce federal regulatory provisions, which could involve the hiring of
private lawyers on a contingent-fee basis to help them do so).[277]
(At the time this report went to print, it was unclear whether these provisions
would be included in the final House-Senate bill.)
It is unsurprising that the litigation industry has evolved into such a powerful
political force. Whereas trial lawyers’ interests are concentrated in the
issue of liability, on which their livelihoods depend, opposing factions, like
business and the medical profession, have interests that are diffuse. In the
public-policy universe, doctors care about liability but are more worried about
the repercussions of health-care reform and the size of Medicare reimbursements;
car companies care about liability but are more anxious about cap-and-trade
legislation and fuel-efficiency standards. In some instances, industries can
be at cross-purposes; efforts at asbestos-liability reform, for example, were
stymied in part by a conflict of interest between insurers and manufacturers.[278]
In addition to holding these systemic advantages, lawyers have shown themselves
to be peculiarly capable of navigating the waters of modern political influence.
Campaign finance laws that limit contributions (to $2,400 per candidate at the
federal level)[279] frustrate concentrated giving in many
industries, but the organized plaintiffs’ bar has proved adept at coordinating
its giving, both within firms and across states.
Notwithstanding the power of the lawyer lobby, efforts at reform are not futile.
Even in the current political environment, some states have been working to
restore sanity to their own liability systems. In 2009, for instance, Oklahoma’s
legislature passed a comprehensive package of tort reforms that included stricter
evidentiary standards, caps on noneconomic damages, and limitations on a lawyer’s
ability to “shop” cases to the most favorable forum.[280]
Over time, states that rein in lawsuit abuse have an advantage in attracting
businesses and doctors.
Furthermore, only five years ago, a differently constituted Congress did pass
a major liability reform, the Class Action Fairness Act (CAFA),[281]
that limited lawyers’ ability to bring large national class actions in
the most favorable state courts. Barack Obama, then the junior senator from
Illinois, voted for CAFA, unlike his major rivals for the Democratic presidential
nomination.[282] The president has, in fact, expressed
an understanding of the problems of lawsuit abuse,[283]
and his large and diverse base of campaign donors has made him less dependent
on Trial Lawyers, Inc. than congressional leaders such as Senators Harry Reid
of Nevada and Dick Durbin of Illinois. Although the president has voiced opposition
to damage caps, his rhetoric and his record suggest that, were congressional
leadership to change, he might be open to the funding of state-level experiments
in reform or supporting legislation that, like CAFA, tightens federal procedural
rules.
Reforming America’s liability rules is not easy: the lawsuit lobby is
unusually strong, and America’s system of government is structured to make
change difficult. But the very reason that Trial Lawyers, Inc. devotes so many
resources to its government-relations and public-relations efforts is that the
political objective for which it is fighting—the maintenance of the oversized
lawsuit industry—is both harmful and unpopular. In recent years, proponents
of legal reform have made progress, if haltingly, and the American public does
want to curb lawsuit abuse. So while the litigation industry today is aggressively
leveraging its political power to advance its self-interested legislative agenda,
change for the better may not be too far beyond the horizon.
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272. In 1958, Roscoe Pound, see supra page 9,
worried aloud that those pushing for expansive strict product liability were
“not looking squarely at all the facts” and that such a program would
have “consequences beyond the law of torts.” Roscoe Pound, The Ideal
Element in Law 340 (1958).
273. Michael Porter, The Competitive Advantage of Nations 525 (1990).
274. Mark Tapscott, Dean Says Obamacare Authors Don’t Want to Challenge
Trial Lawyers, Wash. Examiner, Aug. 26, 2009.
275. Letter from Anthony Tarricone, president, American Association for Justice,
http://images.magnetmail.net/images/clients/ATLA/attach/SENATEPASSESHISTORICHEALTHCAREREFORM.pdf
(last visited Jan. 13, 2010).
276. See Affordable Health Care for America Act, H.R. 3962, 111th Cong.
§ 2351 (2009); see also James R. Copland, Tort-Bar Treat,
N.Y. Post, Nov. 3, 2009.
277. See id. at § 257; see also Chris Rizo, House Health Care Bill
Expands State AGs’ Powers, Leg. Newsline, Nov. 24, 2009, available at
http://www.legalnewsline.com/news/224232-house-health-care-bill-expands-state-ags-powers.
278. See Stephen Labaton, Asbestos Bill Is Sidelined by the Senate,
N.Y. Times, Feb. 15, 2006.
279. See 14 U.S.C. §§ 441a(a)(1), 441a(c) (2008).
280. See H.B. 1603, 52nd Legis., 1st Reg. Sess. (Okla. 2009) (enacted
May 29, 2009).
281. S. 5, 109th Cong. (2005) (codified as 28 U.S.C. §§ 1332(d), 1453,
1711-1715 (2006)).
282. See U.S. Senate Roll Call Votes 109th Congress, 1st Session, http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=1&vote=00009
(last visited Jan. 13, 2010). Sens. Hillary Clinton (D-N.Y.) and Joe Biden (D-Del.)
both opposed CAFA; Sen. Chris Dodd (D-Conn.), as well as Sen. Obama (D-Ill.),
did vote for the bill. Dodd was not generally considered a “major”
presidential aspirant.
283. See President Barack Obama, Address to a Joint Session of Congress
on Health Care (Sept. 9, 2009), available at http://blogs.wsj.com/washwire/2009/09/09/prepared-text-of-obamas-speech-on-health-care/.
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