Now that the dust has settled after this year’s midterm elections–in which thirty-three Senate seats and all 435 seats in the House of Representatives were up for grabs–both the House and the Senate will be in the hands of Republicans (for the first time since 2006). Beginning in just weeks, we can expect to see a concerted effort to enact legislation that is beneficial to corporate interests, but harmful to private citizens. This post will explore some of the ways in which we expect this tort reform agenda, the proponents of which are almost entirely Republicans, to play out over the course of this congressional term (with special thanks to ThePopTort for drawing our attention to this matter).
The morning after the elections, pro-business lobbying group the U.S. Chamber of Commerce–by far the largest lobbying group in the country–released a statement in the National Law Journal explaining their optimism. The head of the organization’s tort reform arm, the Institute for Legal Reform [ILR], said that she believes “a Republican-controlled Congress would move on litigation reform built on bills including the Furthering Asbestos Claim Transparency [FACT] Act and the Lawsuit Abuse Reduction Act [LARA], which both passed the House in 2013. ” This statement, to anyone familiar with the two bills she mentioned, is chilling.
The aim of the first, the FACT Act, is to limit the ability of individuals harmed or injured by asbestos to sue. The New York Times editorial board in 2013 called this bill “misguided,” pointing to the fact that “there is no persuasive evidence of any significant fraud or abuse” for such claims. Rather than passing this bill, they argue, Congress should figure out whether “there is even a problem that needs fixing.” That a high-ranking employee of the U.S. Chamber of Commerce would single out victims of asbestos poisoning as her primary adversaries is telling: the organization’s Institute for Legal Reform seems to single-mindedly cling to media buzzwords rather than facts and empirical data.
The second bill, known as LARA, would impose sanctions on attorneys, firms, and associated parties who file so-called frivolous lawsuits, often requiring them to pay parties they have sued. The courts have the power to impose such sanctions, but this law would make actions like this mandatory. The Congressional Budget Office has chimed in on this matter, claiming that the bill would cause no significant impact on the federal budget, but the ILR argues that meritless lawsuits must be punished (although judges have the power to do so at their discretion now). The Center for Justice and Democracy at New York Law School points out that a similar law was in effect twenty years ago, and that we abandoned it because it was “unworkable, unfair, and unnecessary.”
If the ILR is any indicator, these may be some of the first measures this new Congress tries to pass to limit individuals’ access to our shared civil justice system. ThePopTort predicts that we will soon see proposed legislation dealing with caps on damages, something this blog has covered on several occasions. If there is a silver lining to the recent election results, it is that some of the more extreme right-wing candidates were not very successful. Trial lawyer organizations will continue to work with all legislators to find common ground and avoid draconian legislation like that supported by the ILR.
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