Bad Tort “Reform” Arguments are Unconstitutional
Well, maybe not. But when accepted and advanced via mainstream media, they can be a dangerous tool to manipulate public opinion and convince us to support policies that actually work against our own best interests. For example, this op ed in the WSJ attempts to challenge the constitutionality of the legal tool that civil rights activists used to dismantle Jim Crow in public schools (via Brown v. Board of Education)--the class action lawsuit.
While reading the actual WSJ piece made me want to scream, I love this blogpost by Maxwell Kennerly which deftly dissects the piece bit by bit, pointing out all of the bad legal arguments it makes and then concluding that "if you don't put in the time to really prepare and test your argument, something will go wrong. And that's the heart of poor advocacy." Here's an excerpt:
Bad Legal Argument 1: Rushing Into a Judo Flip
There's a hidden tax imposed on companies that do business in the United States that hinders their international competitiveness and eventually filters down to consumers.
This "tax" takes the form of certain class-action attorneys who, like a roving shadow, look for any opportunity to claim that a business has done something wrong -- for example, provided misleading consumer advertising -- without concern for whether any member of the public actually thinks he or she was harmed. To avoid high legal fees and litigation distractions, corporations very often settle, paying out millions of dollars.
Bolding mine. When choosing themes and images ("if the gloves don't fit..."), always anticipate what happens to your themes and images in your opponent's hands, like so:
There's a hidden tax imposed on customers in the United States ... this "tax" takes the form of the widespread damage caused every year by unsafe, defective or deceptive products. Numerous business, like pickpockets, look for ways to rip off the public in small ways -- for example, providing misleading consumer advertising -- without concern for the cost it imposes upon consomers who are hurt, disappointed, or cheated by these products.To avoid high legal fees and litigation distractions in light of the damages, which are small in individual cases but large in the aggregate, customers usually don't sue even when they have strong claims. That's why class actions are so important. (Keep reading and be sure to comment on Maxwell's blog)
In my Memo to the Netroots on Civil Justice I argued that it's important for progressive bloggers to get involved in the public dialogue around these issues. We need more people writing letters to the editor and op eds, submitting articles to the bigger political websites, and of course, blogging and commenting on websites like TortDeform about why ordinary people need, and deserve, access to the civil justice system. And we need to serve as watchdogs, challenging and correcting the misinformation and deception about the nature of our civil legal system that is often disemminated by the corporate lobby and mainstream media.