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| Bradshaw & Bryant PLLC

The tort reform fight continues, with substantial evidence that it is a well thought out and organized moment. Bill Moyar recently described the present moment in his keynote speech at the Public Citizens 40th Anniversary Dinner:

On August 23, 1971, a corporate lawyer named Lewis Powell – a board member of the death-dealing tobacco giant Philip Morris and a future Justice of the United States Supreme Court – sent a confidential memorandum to his friends at the U. S. Chamber of Commerce. We look back on it now as a call to arms for class war waged from the top down.

Watch the whole thing here:

The plan was to to use the argument of free speech and a free market to stop those who were forcing big business to take responsibility for their wrongs. The attack was on the consumers.

The fight has filled Washington and local state capitols with hundreds of lobbyists working to change the law. As recently reported:

  • 39 states have modified joint and several liability, a legal rule that empowers a winning plaintiff to collect from multiple wrongdoers in case one of them can't pay.
  • 33 states have altered punitive damages laws.
  • 23 states have modified the rules for awarding non-economic damages, like pain and suffering.
  • 20 states have enacted laws to restrict consumer rights against the maker of a defective product.
  • 11 states have enacted laws to restrict consumers from joining together to file a "class action."

This is a product of the constant lobbing efforts of the US Chamber and American Tort Reform Association (ATRA). Work that seems to ignore that the US Constitution includes 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, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

They don't seem to care about the rights of the consumer. At the same time, they seem to champion the hypocrisy that exists when, for example, Auto-Owners Insurance files a product liability suit against Hallmark after they paid damages to a home owner for a fire.

The very thought that corporations are citizens was most recently discussed in the Citizens United case, where it was found that corporate political donations were protected free speech (funny that they read the Constitution to support that argument) .

Justice John Paul Stevens recently discussed the case in Time:

How do you feel about the Citizens United decision, which allows corporations to spend as much as they want on campaign advertising?

I feel strongly that the court made a serious mistake in finding that money is the equivalent of protected speech. If followed out to its logical conclusion, that would have provided First Amendment protection to the Watergate burglars. They were financed with campaign expenditures.

Now what that means may not be clear as was concisely addressed by the Volokh Conspiracy, but it does raise a point that the long term effect of the decision is the opening of the door to just the type of thing that Powell called for many years ago.

People need to keep listening to the words of Moyar. The rights we have are precious and can't be taken away.

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