A Supreme Court Justice Begins the Tort “Reform” Movement: The Powell Manifesto
DATE: August 23, 1971
TO: Mr. Eugene B. Sydnor, Jr., Chairman, Education Committee, U.S. Chamber of Commerce
FROM: Lewis F. Powell, Jr.
This memorandum is submitted at your request as a basis for the discussion on August 24 with Mr. Booth (executive vice president) and others at the U.S. Chamber of Commerce. The purpose is to identify the problem, and suggest possible avenues of action for further consideration.
Dimensions of the Attack
No thoughtful person can question that the American economic system is under broad attack.1 This varies in scope, intensity, in the techniques employed, and in the level of visibility.
There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism). Also, there always have been critics of the system, whose criticism has been wholesome and constructive so long as the objective was to improve rather than to subvert or destroy.
But what now concerns us is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.
Sources of the Attack
The sources are varied and diffused. They include, not unexpectedly, the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic. These extremists of the left are far more numerous, better financed, and increasingly are more welcomed and encouraged by other elements of society, than ever before in our history. But they remain a small minority, and are not yet the principal cause for concern. (link)
Later on the memo continues….
Neglected Opportunity in the Courts American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change. Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business. Perhaps the most active exploiters of the judicial system have been groups ranging in political orientation from "liberal" to the far left. The American Civil Liberties Union is one example. It initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court. Labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena. Their success, often at business' expense, has not been inconsequential. This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds. As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort. (link)
The above memo is known as the Powell Memo, also known as the Powell Doctrine, written by Supreme Court Justice Lewis Powell two months before he was nominated to the Court by president Nixon in 1971.
Sometimes it is easy to feel like the rhetoric about a vast coordinated campaign by business interests to indoctrinate the public are overblown. Many who read this blog would agree that there is some coordination amongst business interests. The only real question is just how coordinated, how deliberate, and how large this coordinated campaign is.
While for most movements there is no particular place in time in which they definitively “begin,” this memo marks the moment in time, that is at least the beginning of the beginning of the modern tort “reform” movement. If you’ve ever wanted an excuse to be a conspiracy theorist, keep reading the memo that framed the viewpoint and initiated the strategy of the modern tort "reform" movement in 1971.
It should give every opponent to the evisceration of our civil justice system by the self-labeled tort “reform” movement a long moment of pause read just how coordinated and deep the agenda of the corporate lobby can go.
They have an enormous head start, they have more money, but hey, at least we have access to their first strategy memo!
Below, read a short introduction to the memo by ReclaimDemocracy.org. This memo is so long and so interesting that I have decided to make it into a series on Tort Deform... so there’s more to come.
In 1971, Lewis F. Powell, then a corporate lawyer and member of the boards of 11 corporations, wrote a memo to his friend Eugene Sydnor, Jr., the Director of the U.S. Chamber of Commerce. The memorandum was dated August 23, 1971, two months prior to Powell's nomination by President Nixon to the U.S. Supreme Court.
The Powell Memo did not become available to the public until long after his confirmation to the Court. It was leaked to Jack Anderson, a liberal syndicated columnist, who stirred interest in the document when he cited it as reason to doubt Powell's legal objectivity. Anderson cautioned that Powell "might use his position on the Supreme Court to put his ideas into practice...in behalf of business interests."
Though Powell's memo was not the sole influence, the Chamber and corporate activists took his advice to heart and began building a powerful array of institutions designed to shift public attitudes and beliefs over the course of years and decades. The memo influenced or inspired the creation of the Heritage Foundation, the Manhattan Institute, the Cato Institute, Citizens for a Sound Economy, Accuracy in Academe, and other powerful organizations. Their long-term focus began paying off handsomely in the 1980s, in coordination with the Reagan Administration's "hands-off business" philosophy.
Most notable about these institutions was their focus on education, shifting values, and movement-building - a focus we share, though usually with contrasting goals. One of our great frustrations is that "progressive" foundations and funders have failed to learn from the success of these corporate institutions and decline to fund the Democracy Movement that we and a number of similarly-focused organizations are attempting to build. Instead, they overwhelmingly focus on damage control, band-aids and short-term results which provide little hope of the systemic change we so desperately need to reverse the trend of growing corporate dominance. (linK)