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Wolves in Sheep's Clothing

Walter Olson, a senior fellow at the conservative Manhattan Institute, recently noted on his blog that the so-called “tort reform” movement is undergoing a sort of re-branding process. In his post, Olson points to a University of Dayton Law Review article by Mark Behrens and Andrew Crouse titled "The Evolving Civil Justice Reform Movement: Procedural Reforms Have Gained Steam, But Critics Still Focus On Arguments Of The Past."

Faced with mounting evidence that damage caps have little effect except to further harm victims, corporate lobbyists have come up with a new "wolf in sheep's clothing" approach to protecting corporate interests.

Here’s how their new strategy works:

First, they’re downplaying their support for corporate protections like damage caps and outright immunity from liability.  These sorts of protections are harder to defend in the face of such victims as Lorenzo Peterson and Virginia Baker - young lives destroyed by an unsafe product.

Instead, corporate lobbyists are trying to erect procedural obstacles that will preserve the illusion of corporate accountability, while ensuring that very few corporations will ever have to answer in court for their negligent conduct.

American Tort Reform Association general counsel Victor Schwartz had a lengthy article in the Kansas Law Review last year that essentially argued for turning consumer protection laws back to the 19th century, voiding all of the progress that has made us safer over the past hundred years.

These sorts of procedural rule changes have the added bonus of being much more subtle than such outright protections as arbitrary caps on damages.  After all, if you're obviously trying to slam shut the door to the courts, the public is likely to notice.  But if you start talking about "appeal bonds," "medical criteria," or "coordinated state attorney general litigation," as Behrens and Crouse do, you can quietly close courtroom doors to citizens while everyone around you falls asleep.

The second facet of this corporate protection makeover consists in trying to disguise the wolves in sheep’s clothing. Ted Frank, director of the American Enterprise Institute's "Liability Project", has taken to calling himself a "consumer advocate", while Philip K. Howard, a senior corporate adviser and strategist for corporate law giant Covington & Burling, is promoting his procedural hurdles for medical malpractice under the banner of the Orwellian-named organization "Common Good".

By co-opting the language of the consumer protection movement, corporate lobbyists hope to confuse the debate, as well as to re-brand themselves as "pro-consumer" while they continue to promote policies that will leave consumers less healthy, less safe, and with no access to justice.

These wolves in sheep's clothing are beasts to really watch out for. Remember, these guys have years of experience and very deep pockets behind their myth and misinformation campaigns – they know how to hoodwink the unsuspecting.

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Comments

austingrrrl

Nice analysis. This is a classic conservative political tactic...the only way to challenge this kind of intentional deception is to educate the public about the issues. Keep up the good work.

Ted

So what happens when I do view myself as a consumer advocate or the fact that I do care more about reforming civil justice than about "torts"? I support reforms that are good for consumers, and oppose reforms (such as the collateral source rule) that are not. We may disagree on the means, but the evidence shows that liability reform helps consumers more than the anti-consumer measures proposed by the "Consumer Attorneys of California" (read: trial lawyers) do. The best consumer legislation passed by Congress in the last ten years was the Class Action Fairness Act.

Requirements of "reliance" or "injury" are concepts alive in many states in the 21st century. Schwartz's proposal for sensible consumer-fraud laws that benefit consumers rather than attorneys is hardly antediluvian.

NB that I am not a lobbyist, and neither is Walter Olson.

Lara

I fail to see how any law that could potentially prevent injured parties from seeking compensation, or from getting settlements that are large enough to help them deal with the very real problems caused by corporations, is in the consumer's best interest.

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