TorteDeForm

Kia Franklin

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.

Kia Franklin: Author Bio | Other Posts
Posted at 7:39 PM, Aug 07, 2008 in Tort "Reform" Myth-Busting
Permalink | Email to Friend


Comments

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.

the Federal Rules distinguish between class actions seeking only injunctive relief (like the one in Brown) and those seeking money damages. The latter are, in theory, much harder to bring, for some of the reasons noted by the Wall Street Journal piece. Cf. F.R.Civ.P. 23 (b)(2) with 23 (b)(3).

Posted by: Elliot | August 7, 2008 7:46 PM

Yes, it would be nice if the litigation lobby stopped dishonestly bringing up examples of Rule 23(b)(2) class actions as reasons not to fix the problems with Rule 23(b)(3) class actions. There isn't a single tort reformer who argues that Brown v. Board presents procedural problems.

Posted by: Ted | August 8, 2008 2:58 PM

"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...—the class action lawsuit."

Kia, perhaps the op-ed made you "want to scream" because you misunderstood it.

The piece does not "challenge the constitutionality" of class actions. It challenges the constitutionality of a court appointing a defendant's funds to a third person not involved in the suit.

This is its thesis:

The Constitution provides for the resolution of 'cases' and 'controversies' between aggrieved parties. Courts are empowered to resolve those specific disputes, and not to transfer a corporate defendant's assets to an outside organization that has not appeared before the court."

Note that, like the commentators above have pointed out, this critique has literally nothing to do with the class action involved in Brown v. Board. That "legal tool" would be just fine under the changes proposed by the op-ed.

Posted by: Lawyer | August 8, 2008 5:58 PM

Note that, like the commentators above have pointed out, this critique has literally nothing to do with the class action involved in Brown v. Board. That "legal tool" would be just fine under the changes proposed by the op-ed.

Now you're just trying to confuse him with the facts.

Posted by: Elliot | August 8, 2008 6:51 PM

Note also that Kia mounts not a single reason why the argument in the op-ed (or the longer version on law.com) is incorrect as a matter of law other than "it made [her] want to scream." It makes one wonder whether Kia cares about the rule of law at all, or just sees a court as a political device for the redistribution of wealth by empowered judges acting as dictators. We never see Kia or Justinian making legal arguments, or even policy arguments beyond the "trial lawyers good/corporations bad" dichotomy.

Posted by: Ted | August 8, 2008 6:57 PM