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.