William Daniels

Some trial lawyerish thoughts while watching the second debate …

There's a lot of talk about deregulation being bad by Sen. Obama. What about tort deform as part of that equation? Along with eliminating the safety valve mechanisms that protected our financial systems following the Great Depression, the corporate powers also focused on undermining the civil jury system as a check on greed and fraud in the marketplace. The results have been predictable.

It's a great untold story in this present financial crisis, but it shouldn't be.

Sad to say, the discussion is totally missing from this election, on the right because the focus has shifted away from blaming lawyers for all of society's ills, on the left because they're afraid of being tarred with the trial lawyer brush.

Still, the notion that private lawyers can be efficient regulators needs to be told by someone. I wish someone on Obama's team would give him the go ahead, but that's probably asking too much.

Still, isn't tort law really all about fixing responsibility for harm with those responsible? Without the ability to go after the kinds of irresponsible lending practices and theft by financial manipulation because of mandatory arbitration, federal preemption and limits on civil recovery, an important component in correcting systemic abuse before it reaches critical mass is severely undermined. In my view, private regulation is often more effective than government, but we need the tools to do the job right.

Anyway, it's different not seeing tort reform turn up as a hot button theme for John McCain during this campaign. The second debate is a great example of how the right has figured out that bashing trial lawyers doesn't play quite so well in an environment where the unregulated financial system is melting down, taking $2 trillion in retirement funds along with it to date (per the LA Times yesterday) and NO ONE is accountable. Probably helps that Karl Rove is out of the picture, too, but who can say for sure?

Could be if there hadn't been so many systemic barriers to taking on corruption in the mortgage market during the housing boom, we might have avoided some of the pain we are going through today? But, between mandatory arbitration clauses in lending agreements, choice of venue clauses that forced litigation into unfair forums and legal doctrines that cut off the responsibility of those pulling the strings on the bad loans, an important part of our checks and balances against financial corruption, ie., the civil justice system, was as badly undermined as the other victims of deregulation.

Lady Justice says, get the corporate thumb off the scales of justice and give power back to the people in the jury box. Good enough for the founding fathers, good enough for me.

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Posted at 2:51 PM, Oct 08, 2008 in Civil Justice | Decision 2008
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Thanks Bill for these insights. I've been wanting to blog about how this financial crisis is related to tort "reform" for a while. So how do you think the candidates (and at this point, it looks like only Obama would be open to this, although I'd be happy to be corrected on this) can overcome the "trial lawyerish" affiliation and really bring home the fact that, as you illustrate, these are really just concerns that affect ordinary people?

Posted by: Kia | October 8, 2008 4:24 PM