CONGRESS is poised to pass a massive giveaway to the ambulance-chasing trial attorneys – under the guise of protecting consumers.
The proposed law [the CPSC Reform Act] would give the 50 state attorneys general new powers to sue the makers of allegedly unsafe products – and even to demand help in their suits from the federal Consumer Product Safety Commission.
Headline-hungry AGs will even be able to sue over products the CPSC has already found to be safe. In other words, national standards will effectively go out the window, as politically ambitious AGs compete to bash business so as to win popularity for future elections.
The legislation – which the House has already passed and the Senate’s likely to pass – would hamper CPSC’s mission by creating multiple unscientific “safety” standards. Each AG’s vision of what the latest scientific studies imply about purported dangers would prevail in a given state, rather than the CPSC’s own (far more expert) findings.
All this would mean a bonanza to trial lawyers – who’d stand to make hundreds of millions from relentless lawsuits within just a few years, since each state would become a new roulette-wheel of potential jury verdicts against manufacturers. …
Further encouraging bogus complaints, the bill would grant unprecedented “whistle-blower” protection to any employee who alleges a fear of product danger – an easy way to secure your job until your case is adjudicated.
As a Tennessee appellate court noted in rejecting Joan Frye’s lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive does not violate civil rights statutes.” Some legislators are trying to change that (excited in part by Suffolk Law Professor David Yamada’s theory of making “bullying” actionable). The ABA Journal is the latest to note the trend. (The article unfortunately repeats the false smear against my colleague John Bolton.) As we noted last May,
Enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing “superpersonnel departments” dispensing financial balm for injured feelings in the workplace.
Employment attorney Richard Block is more blunt in the ABA Journal: “You’re talking about a lifetime annuity of work for employment lawyers.” Bills are pending in thirteen states.
My monthly post for NPR’s Talking Justice weblog is about their topic of the week, the Ledbetter Supreme Court case and the associated (and counterproductive) legislation passed by the House.
The Consumerist blog is supposed to be a pro-consumer blog, but it’s amazing how often their political agenda is really a trial-lawyer agenda that hurts consumers. Many of the 2007 bills Carey Greenberg highlights as consumer-friendly are quite the opposite:
- H.R. 3010: Arbitration Fairness Act of 2007
What It Does: Raises costs to and reduces choices for consumers and lowers employee wages by forcing consumers and employees to pass up the benefits of mandatory arbitration, whether they wish to or not. More at Overlawyered, and on SSRN.
Status: Hearings held in both the House and Senate. Likely to be vetoed if passed.
Even the tort bar understands how deeply loathed it is by the American public. The Association of Trial Lawyers of America didn’t last year change its name to the bland “American Association for Justice” for nothing.
So no, even the old liberal lawsuit bulls such as Henry Waxman or [Barney] Frank won’t start calling for the repeal of the 2005 Class Action Fairness Act, or for other blatant legislative assists to the trial bar. Instead, Democrats intend to reward the legal industry with more subtle payoffs. The most obvious gift will be a moratorium on further legal reform. Beyond that, Democrats will rely on two tried-and-tested tools to aid and abet the legal community. They’ve employed both in the past few weeks. …
A Democratic Congress means far more regulation, and any new regulation is an opportunity to insert a line or two giving the tort bar greater rights to sue. These provisions will be subtle and technical, designed to escape notice. But just in case they do raise a red flag, they’ll also be tucked into bipartisan or must-pass legislation (such as the Iraq supplemental), making it that much harder for Republicans or President Bush to shoot them down.
It’s a measure of how well Republicans played tort abuse to their political advantage that Democrats today are reluctant to brazenly flack for the legal class. If the GOP wants to keep it that way, it will have to start working harder to expose the quiet ways in which the left is now helping trial lawyers bilk the system.
The other means is by taxpayer-funded subpoenas and hearings to develop evidence and publicity for the trial bar.
Strassel claims that there is such an earmark created at the behest of ATLA, subtly providing an implied cause of action against chemical manufacturers in H.R. 1591, the soon-to-be-vetoed Iraq War supplemental funding bill. Indeed, the provision is difficult to find amidst the provisions for the milk income loss contract program and renewal grants for women’s business centers. I suspect Strassel is referring to the anti-preemption provision in Section 1501(a) of the bill, effectively permitting lawsuits against chemical facilities that comply with Department of Homeland Security regulations without once mentioning the word “lawsuit.” If there is a terrorist attack on a chemical facility, trial lawyers will have a deep pocket to blame.
Perhaps we, as a society, would agree with the Democratic Party and would prefer trial lawyers, instead of the Department of Homeland Security, to be in charge of chemical plant security. (Trial lawyers do have the advantage of getting to operate only in hindsight.) But shouldn’t that critical decision be made openly?