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
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
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
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.