An Assault on Citizens’ Rights

Trial – David S. Casey, Jr.

I recently heard a statistic that, although it didn’t surprise me, brought home the ferocity of the past year’s attack on civil justice in America: As of mid-May, the U.S. Senate had spent 15 days debating and voting on measures related to the war in Iraq—and more than 30 days seeking to restrict the rights of injured people to hold wrongdoers accountable.

It seems that limiting consumer rights has become the centerpiece of the Bush administration’s domestic policy agenda, and lawmakers allied with powerful corporate interests are pressing it hard in a Senate where the old rules apparently no longer apply. Traditionally, bills are studied and refined in committee and then passed to the Senate floor. No longer. Bills voted down on the floor are usually considered dead for the session. No longer. The Senate, often called the “greatest deliberative body in the world,” typically conducts itself in a statesmanlike manner. No longer.

Consider how senators acted on these anticonsumer measures:

• A bill to create a “supertax” on contingent fees was defeated last year in committee. A week later, Senate leaders bypassed the committee and brought the same bill directly to the floor, where it was voted down again. Its proponents then made a 2 a.m. attempt to attach it as an amendment to a budget bill. That attempt failed. Finally, in a late-May floor vote, the proposal was rejected a fourth time.

• Proponents of a bill to limit the liability of negligent doctors and makers of defective drugs and medical devices failed to overcome a filibuster a year ago. Several months ago, the bill’s sponsors revised it to apply only to obstetricians and gynecologists and—without bothering to hold committee hearings—brought the measure to the floor, where a filibuster stopped it again. The Senate leadership, unwilling to take no for an answer, repackaged the bill to shield emergency room doctors; they lost on the floor a third time. Apparently, “three strikes, you’re out” doesn’t apply in the Senate: A fourth medical malpractice bill is expected to be brought to the floor soon in the guise of a “rural doctors bill.”

None of this legislation went through a Senate committee before it reached the floor.

(Not to be outdone, the House of Representatives recently—and completely unnecessarily—passed a med-mal bill identical to the one it passed last year, to “send a message.” This was highly unusual, perhaps unprecedented, for Congress.)

• A bill to federalize virtually all class actions failed to overcome a filibuster several months ago; a substantially similar bill is expected on the Senate floor a second time as this issue of TRIAL goes to press.

• An asbestos bill went to the floor in May and, like the med-mal and class action bills, was blocked by a filibuster. But the measure will probably reach the floor again.

Many other bills that would eviscerate consumer rights were introduced this session. Major legislation that would have established a national energy policy failed to pass the Senate because it included a controversial measure to immunize oil companies from lawsuits over MTBE contamination. Industry lobbyists keep looking for an opportunity to bring back the energy bill or to attach the MTBE provision to other legislation. A bill that would have granted immunity to the gun industry died on the Senate floor. And the so-called fast-food immunity bill passed the House and awaits action in the Senate.

Because trial lawyers stand for what is right—for protecting ordinary Americans against powerful corporate interests—we have prevailed so far. As I write this, none of these measures has made it to President Bush’s desk for his certain signature—an extraordinary accomplishment. Despite that success, as I conclude my ATLA presidency I must issue a warning.

The civil justice system faces a clear and present danger. Never before have special-interest bills been taken to the Senate floor so repeatedly. Never before have the Senate’s time-honored deliberative processes been so thoroughly ignored. And never before has a president of the United States so relentlessly used his bully pulpit to attack citizens’ rights for political gain.

If you care about the people you represent—and I know you do—you must act. With the fall elections only a few months away, dedicate yourself to helping elect U.S. senators who care about those they represent and the civil justice system. This is not a land of special privileges for the few: Everyone stands equal before the courts, and it is our job to keep it that way.

As you read this issue of TRIAL, you’ll appreciate the breadth and depth of recent attacks on the civil justice system, and you’ll get angry—angry enough, I hope, to act.