Originally published by ACS Blog [here]
By Jay Feinman, Distinguished Professor of Law, Rutgers University School of Law, Camden
When President Bush recently proclaimed medical liability reform to be
one of the top items on the agenda for his second term, he was only
telling part of the story. Bush’s victory and larger Republican
majorities in the Senate and House make more likely the passage of tort
reform legislation that will impose national damage caps in health care
cases, preempt punitive damages against the makers of FDA-approved
drugs, cut back on class actions, and establish immunity from liability
for gun sellers and the food industry.
But tort reform is only one piece of a bigger picture. Since the Reagan
administration, a network of business interests, politicians,
foundations, and think tanks has engaged in a broad-based effort to
transform all of tort, contract, and property law to the advantage of
big business and the detriment of ordinary people.
Tort reform is the most visible part of this campaign, as legislatures
and courts have reversed longstanding rules that protect injury victims
and promote public safety. In many states and, remarkably, through the
increasing federalization of tort law, negligent actors have been
immunized, liability rules have been narrowed, and damages have been
capped; more changes are on the way.
At the same time, courts have remade contract law, reshaping
traditional formation and interpretation doctrines to strictly enforce
contracts drafted and imposed by big businesses. Form contracts now
typically include enforceable mandatory arbitration clauses, for
example, preventing consumers from having their day in court; the
Supreme Court has broadly interpreted the Federal Arbitration Act to
preempt state limitations on arbitration, even in cases in which the
arbitration process fails or in which fundamental rights are involved,
such as worker claims of race discrimination.
In property law, the “property rights movement” has asserted a
historically unprecedented reading of the takings clause of the Fifth
Amendment that has expanded the rights of individual property
owners–often large corporations, rather than humble homeownersat the
expense of the public good. The effect is to undermine government
efforts to prevent environmental harm, the destruction of beaches,
wetlands, and forests, and suburban sprawl, and even to threaten
health, safety, and welfare programs that impose modest burdens on
businesses.
Although pressed by right-wing Republicans and big business, the most
remarkable thing about the campaign to transform tort, contract, and
property law is that it is not really conservative at all; it is
radical. In the era of classical legal thought at the end of the
nineteenth century, conservative judges advanced a concept of law based
on the natural rights of property, abstract freedom of contract, and
limited liability for tortious harm. The practical effect of this
concept was to enable big businesses to exercise their economic power
with minimal interference by the government; Lochner v. New York in
1905 was its most notorious manifestation. The story of American law
through the twentieth century, from sociological jurisprudence and
legal realism through the consumer and environmental movements of the
1960s and 1970s, is an attack on this idea. Progressives developed
alternative approaches that consider other interests as well, including
the promotion of safety and the compensation of injury victims in tort
law, the protection of less sophisticated consumers in contract law,
and the assertion of the public interest in the use of property. The
radical conservative movement rejects this history and aims to turn
back the clock and revive the long-discredited ideas that the market
should be left to work without interference from the law; that
resulting injuries, inequalities, and indignities are natural; and that
the legal system should not intervene to correct those problems.
In this way, the attack on the common law is part of the broader
conservative aim to reduce the ability of government to promote the
common good. In his first inaugural address, Ronald Reagan famously
declared that "Government is not the solution, it is the problem."
Transforming the common law has the same objective as starving
government through tax cuts, privatizing government programs, rewriting
environmental laws, and appointing business-friendly regulators: let
business do its business and get government out of the way.
Whether the rights of personal injury victims should be maintained or
cut back, therefore, is only the leading edge of a much broader
movement. The movement will be aggressive in seeking changes in George
W. Bush’s second term, and it presents a fundamental choice: whether
courts in common law cases are part of the solution to social ills, or
just another obstacle in the path of business having its way.
Professor Feinman is the author of Un-Making Law: The Conservative Campaign to Roll Back the Common Law (Beacon Press, 2004)