Debate began in the Senate this week on the Class Action Fairness Act, a bill intended to revamp the rules and procedures governing class-action lawsuits and to place more of such suits in the federal judicial system instead of state courts. The tort reform movement — those in favor of changing the rules regarding the body of U.S. civil law in which damages are sought by plaintiffs for extra-contractual liabilities — has burgeoned under the Bush administration and will likely see its efforts come to fruition in the act, which has strong Republican support and is likely to pass quickly in both houses.
The major point of contention in the debate is the status of class-action suits, in which many plaintiffs lump together their claims in a single legal action. But whereas bill opponents like Patrick Leahy, D-Vt., believe that “class actions allow the little guys to band together, allow them to afford a competent lawyer and allow them to redress wrongdoing,” tort reformers contend that the current system is too permissive of “frivolous” lawsuits (witness the recent spate of lawsuits seeking damages from fast-food chains for making their customers obese) and that the practice of “forum shopping,” in which groups of plaintiffs search for the state venue in which they are most likely to win and receive large awards, makes a mockery of civil justice.
Plaintiffs’ attorneys (or, as the language of tort reform has it, “trial lawyers”), consumer advocacy groups, and even several state attorneys general have been vocal in opposition to the bill. They have some allies in the Senate, including Diane Feinstein, D-Calif., who is seeking passage for an amendment to CAFA that would ensure that class-action suits are heard in federal courts (which frequently dismiss class actions in which laws from different states are in play). Without the amendment, however, the likely effect of CAFA is that more plaintiffs will have to press their claims in federal venues, and fewer cases will be heard and less damages awarded.
It can hardly be doubted that some suits — such as the “obesity suits” — are frivolous, but is a wholesale restructuring of tort law necessary to weed them out? Tort reformers say they want to end the strain placed on the courts by a deluge of frivolous suits. But according the Department of Justice’s Bureau of Justice Statistics, cases decided in court (the only ones in which damages are awarded) make up only 3 percent of all tort cases.
The reality is that CAFA is only the most recent visible part of the tort and civil law reform movement that is currently thriving under the Bush administration. State legislatures and the increasingly conservative federal judiciary are already chipping away at individual citizens’ courses of redress in an incremental process of capping damages, narrowly construing liability laws and affording special protections to whole categories of negligent defendants. CAFA was not drafted in a vacuum; it is the capstone of an effort on the part of business interests, the insurance lobby and conservative politicians to change tort law and civil law in general to protect large businesses from claims brought by ordinary people regarding negligence, health and safety violations and other abuses.
The diminution of plaintiffs’ avenues of redress under tort law mirrors a broader trend in conservative politics of diminishing the government’s role as an active guarantor of the rights and liberties of citizens, embodied by (for example) the current assault on Social Security, the weakening of business and environmental regulation, and the privatization of government services. The debate in the Senate is the offspring of a conservative mindset that regards common-good regulation — environmental protection, workplace safety requirements, rules governing negligence, medical malpractice laws — as imposing unreasonable burdens on businesses. But the debate rarely focuses on the individuals who rely upon class-action suits as remedies for injuries suffered at the hands of negligent doctors or unsafe employers.
If the CAFA passes, its supporters should at least be honest: tort reform isn’t about restructuring the legal system for the common good. It’s about screwing the little guy out of his day in court.
Rob Hunter (email@example.com) is a senior majoring in political science and philosophy.