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A REPORT ON THE

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Tort Costs, Percent GDP , 2003

A Message from the Directormerica’s litigation-friendly legal system continues to im-pose a heavy burden on our economy. The annual direct

cost of American tort litigation—excluding much securities liti-gation, punitive damages, and the multibillion-dollar settlement reached between the tobacco companies and the states in 1998—exceeds $250 billion, almost 2 percent of gross domestic prod-uct.1 The indirect costs of excessive litigiousness (for example, the unnecessary tests and procedures characterizing the practice of “defensive” medicine, or the loss of the fruits of research never undertaken on account of the risk of abusive lawsuits) are prob-ably much greater than the direct costs themselves.2

Of course, tort litigation does do some good, and it does deter some bad behavior. The problem is that it deters a lot of good behavior, too. Indeed, the legal system does such a poor job of distinguishing between good and bad behavior that the high cost of litigation is effectively a “tort tax” paid by every American. The share of America’s economy devoted to lawsuits is far higher than that of other developed nations such as Germany and Japan (see graph below, left). Yet America is hardly safer as a result.

As this report details, the causes of the staggering growth in the overall economic costs of litigation in America (see graph be-low, right) are somewhat complex. A series of writings by academ-ics and decisions by judges from the 1930s through the 1960s—many of which were well-intentioned—changed our legal rules to make it much easier to file and win lawsuits.3

Alongside these doctrinal changes, the modern trial-lawyer lobby emerged. As the plaintiffs’ bar became wealthier, more organized, and more like an industry—we like to call it Trial Lawyers, Inc.—it grew into a major political force. Combining large-scale political giving with K-Street lobbying sophistica-tion, the lawyers worked to maintain the legal shifts that had enriched them, as well as to initiate changes that would enrich them still more.

The litigation industry’s political strategy is multifaceted. Be-cause tort law is state law in the United States, the states have been the focus of Trial Lawyers, Inc.’s political efforts. And because tort

law is, for the most part, crafted by state judges rather than en-acted by state legislatures, these efforts have centered on ensuring a friendly judiciary, whether appointed or elected.

With business groups now fighting back against Trial Lawyers, Inc.’s longtime grip on state judiciaries, the litigation lobby has turned its attention to state legislatures, where it is not only block-ing tort reforms but working to expand its portfolio of litigation opportunities. Among other things, state legislators are authoriz-ing new kinds of lawsuits, raising damage caps, and giving private lawyers authority to sue on behalf of the state.

Of course, the growth in federal regulation and law has made it necessary for Trial Lawyers, Inc. to lobby Congress as well. Thanks to large contributions, both to the Democratic Party and to individual legislators, lawyers have not only blocked most fed-eral efforts at tort reform but are also working to coax goodies from Congress that pad their bottom line. Such efforts include:

• Lengthening statutes of limitations in employment law to make it easier to file discrimination suits;4

• Spurring securities litigation by allowing suits to be filed against the vendors of corporations accused of fraud;5

• Cutting contingent-fee lawyers a tax break worth over a billion dollars;6

• Gutting arbitration contracts designed to encourage resolu-tion of disputes that are too expensive to take to trial;7 and

• Allowing state juries to override federal regulations.8

The litigation industry isn’t making political headway because it is popular. Eighty-three percent of Americans think that the legal system makes it too easy to assert invalid claims.9 The plain-tiffs’ bar became so nervous about its public image that it changed its name: in 2006, the Association of Trial Lawyers of America rebranded itself the American Association for Justice.10

But general public unease over the conduct of litigation today cannot combat the overwhelming influence that Trial Lawyers, Inc. has obtained in the halls of power. In the last decade, lawyers and law firms—excluding lobbyists—have injected $780 million into federal campaigns,11 on top of $725 million donated to state

Tort Litigation Consumes Much More of America’s Economy than of Other Developed Nations’

Source: Towers Perrin

Since 1950, U.S. Tort Costs Have Risen Much Faster than GDP

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races.12 Lawyers’ giving is so lavish that it exceeds all other industries’, and likely would do so even if donations by defense firms were backed out of total contribution figures (see note 36).13 Moreover, the plain-tiffs’ bar strategically concentrates its giving, wielding disproportionate influence in contested state supreme court elections and over the lead-ership of both the U.S. Senate and key state legislatures.

The progress of the plaintiffs’ bar has not been entirely unimpeded. Since the Manhattan Institute issued, in 2003, its first report entitled Trial Lawyers, Inc., major tort-reform legislation in states such as Texas and Mississippi has forced plaintiffs’ lawyers to look for friendly new jurisdictions.14 Judges such as Janis Graham Jack have blown the doors off a program of manufactured testimony and medical examinations in the asbestos-lawsuit industry, producing a sharp drop in new case filings in that line of litigation.15 From 2004 through 2008, the cost of litigation to the economy rose more slowly than overall economic growth (see graph above). And four key members of our original Trial Lawyers, Inc.’s “leadership team” have left the business altogether: fed-eral prosecutors uncovered bribery and kickback schemes that led to the imprisonment of Dickie Scruggs,16 Bill Lerach,17 and Mel Weiss;18 and former U.S. Senator John Edwards has retreated from the public scene in ignominy.19

But make no mistake: trial lawyers are re-acting to recent setbacks not by licking their wounds but by flexing their political muscle. Newly enlarged Democratic majorities—swept into office by financial crisis, disaffection with the war in Iraq, and enthusiasm for “hope and change”—seem intent on rewarding their po-litical benefactors. I hope that this report, by shedding light on their shenanigans, can help stem the damage.

James R. CoplandDirector, Center for Legal Policy

Manhattan Institute for Policy Research

Table of Contents14.7

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Tort Costs Have Risen More Slowly of Late

A Message from the Director 2

Introduction 4

The King of Torts 5

The Law Expands 6

Public Relations 9

State Government Relations 12

Suing for the State 13

Justice for Sale 15

Federal Government Relations

Expanding Liability 16

Deputizing Trial Lawyers 17

Attacking Arbitration 20

The Anti-Federalist Congress 20

Toy Story 22

A Trial-Lawyer Tax Break 23

Conclusion 24

Appendix 25

Endnotes 26

Other Resources 31


Visit TrialLawyersInc.com for online versions of this report, previous

editions in the series, updates, and other resources.

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TheRiseofThePl ainTiffs’ BaRAlthough the legal profession and the Anglo-American system of tort law long predate the United States itself, an or-ganized plaintiffs’ bar—and the rise in political influence of trial lawyers like Fred Baron—are relatively recent de-velopments. As noted by legal historian John Fabian Witt, “For the first century and a half of U.S. history, the plaintiffs’ lawyer barely existed as a category.”24 Until the late nineteenth century, torts was not recognized as a discrete branch of law; the first American treatise on the subject was not published until 1859.25 Early-American accident lawyers “shifted back and forth between representing de-fendants and plaintiffs,” and “[t]hrough the first half of the twentieth century, plaintiffs’ lawyers remained for the most

part diffuse and unorganized.”26 However, amid and following the upheavals of the Indus-

trial Revolution, reformers during the Progressive era and the New Deal came to believe that the old common-law tort system was ill equipped to handle proliferating workplace injuries and thus promoted the establishment of a regulatory system. Bor-rowing from Germany, American states began to enact workers’ compensation laws that handled employees’ injury claims out-side the tort system: “Between 1910 and 1921, forty-two states passed industrial injury legislation, replacing tort law with an administrative system affording compensation for accidental injuries arising on the job.”27

From among the lawyers who handled these new workers’ compensation claims arose the trial-lawyer bar and its lobby-ing arm. In 1946, Sam Marcus, a Detroit workers’-comp lawyer

The late Fred Baron, one of the litigation industry’s most successful asbestos lawyers, was never bashful about acknowledging trial lawyers’ political influence. In 2002, in reaction to a recent Wall Street Journal editorial claiming that “the plaintiffs bar is all but running the Senate,” Baron quipped, “I really, strongly disagree with that. Particularly the ‘all but.’ ”20

A past president of Trial Law-yers, Inc.’s political wing—known when he headed it as the Associa-tion of Trial Lawyers of America—Baron had personally donated mil-lions of dollars to political causes.21 For his friend and fellow trial law-yer John Edwards’s 2004 and 2008 runs for national office, Baron di-rected fund-raising operations, lent the campaign his private jet, and infamously paid to relocate the candidate’s mistress, who was pregnant.22

Baron was but one of many heavy-hitting plaintiffs’ law-yers who have ponied up big cash to political campaigns. In-deed, at the time Baron retired from his old firm Baron & Budd, in 2002, there were seven trial-bar contributors to fed-eral campaigns that had given more than his firm: the indus-try’s political action committee; three fellow Texas personal-injury firms, Williams & Bailey, Nix, Patterson & Roach, and Provost Umphrey; and the law firms of asbestos kingpins Ron Motley (who also led the states’ multibillion-dollar litigation against tobacco companies), Peter Angelos (who now owns the Baltimore Orioles), and the recently deceased John O’Quinn (who also made a fortune on breast-implant suits).23

PoliTiCAl Power How Trial Lawyers, Inc. Became Washington’s Most Influential Business Lobby

IntroductIon

Fred Baron

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If Trial Lawyers, Inc. had a single founder, it would have to be San Francisco personal-injury lawyer Melvin Belli, dubbed the “King of Torts”

by Life magazine in 1954.44 Belli was “a man of scarlet silk-lined suits, of multi-colored Rolls Royces, of courtroom theatrics and Hollywood high-jinks.”45 His clients included the Rolling Stones, Lee Harvey Oswald killer Jack Ruby, and Hollywood stars Mae West and Errol Flynn.46 Belli also wrote several books, including the three-volume treatise Modern Trials, which earned him over $1 million in royalties.47

Other lawyers had reason to buy Belli’s book, which explained the tactics he had used to revolutionize the world of tort law. Belli had been the trial attorney in the famous 1944 case Escola v. Coca-Cola Bottling Co.,48 which laid the foundation for strict liability—liability without fault—in product defect cases (see box, next page). In the 1950s, Belli launched modern pharmaceutical litigation with his successful case against a manufacturer of polio vaccines.49

A seminal law review article he wrote,50 along with his aggressive advocacy, helped increase substantially the amounts awarded for “intangible” injuries like pain and suffering. And to play upon jurors’ heartstrings and put them in a more generous mood, he pioneered the use of “demonstrative evidence”—photographs and props that depicted and dramatized his clients’ suffering.51 Many of Belli’s theatrics seem bold even today: in one case, he arranged to have “an injured, 680-pound client [hoisted] through the courthouse window,” and in another, he shocked a 1940s jury “by having a client bare her chest to show scars from an injury. She then shed tears that landed right on her scars.”52

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representing the Congress of Industrial Organizations, met Sam Horovitz, a Boston employee-claims attorney who represented the American Federation of Labor.28 In August of that year, the two formed the National Association of Claimants’ Compensa-tion Attorneys (NACCA). Initial membership was eleven, and Marcus was the group’s first president. In 1949, NACCA began to take on its current form, when the nation’s most prominent personal-injury lawyer, Melvin Belli (see box), persuaded the group to admit all tort lawyers rather than merely those repre-senting injured workers.29

Although Horovitz initially opposed Belli’s entreaties, he soon embraced the group’s expanded mission with gusto, and in 1949, he “took his family on a three-month, 10,800-mile tour across the South and Southwest in a silver aluminum Airstream trailer to establish local branches and chapters of the NACCA.”30 Dubbed the Silver Bullet Tour by the trial lawyers, Horovitz’s mission was wildly successful, bringing hundreds, and then thousands, of new recruits to the lawyer-lobby cause.31

Because the regulated world of workers’ compensation of-fered attorneys far less upside than did the open and rapidly expanding world of tort law, the NACCA soon found itself departing from its original purpose. “Within just a few short years, the NACCA had become an organization dedicated not to the improvement of the workmen’s compensation system, but to its rollback. By the early 1950s, NACCA advocated the abolition of workmen’s compensation.”32

Membership in the lawyer lobby swelled, and in 1960, the organization changed its name to the National Association of Claimants’ Counsel of America, which better reflected its new mission. Four years later, the group adopted the catchier-sounding American Trial Lawyers Association (ATLA), then switched again in 1972 to a similar name, Association of Trial Lawyers of America.33 The government-relations arm of Trial Lawyers, Inc. would keep this moniker for thirty-four years, before deciding in 2006 to disguise its mission by adopting the innocuous-sounding American Association for Justice.34


IntroductIon

Trial Lawyers, Inc. could never have grown into the big business it is

if the traditional legal rules limiting the scope of litigation had not first been loosened. In 1944, pioneering trial lawyer Melvin Belli represented Gladys Escola, a waitress who had suffered severe hand injuries when a bottle of Coca-Cola exploded as she was putting it into a refrigerator.53 Under traditional doctrines, in order to establish liability, Belli would have had to prove negligence on the part of the bottling company.54 However, the bottle’s pieces had been discard-ed, and he had no evidence of error in the manufacturing process.55

Belli persuaded the California Supreme Court to discard the existing legal standard and hold that a jury could deem the bottler negligent under the doctrine of res ipsa loquitor (“the facts speak for them-selves”), permitting the court to infer and assign fault purely on the basis of evidence of the explosion.56 Escola ushered in the era of modern product-liability law; Belli remarked, thirty years later, “If there is one legal decision upon which Ralph Nader built, this was it.”57

The Escola case is remembered less for its holding—few today would argue that it is unreasonable to hold a manu-facture liable for an exploding soda bottle—than for its con-currence,58 written by Justice Roger Traynor, who had taught Belli at the University of California at Berkeley’s Boalt Hall School of Law. Traynor argued that the court should dis-pense with negligence altogether and instead embrace the doctrine of “strict liability,” that is, “an absolute liability when an article that [a manufacturer] has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.”59 Traynor would enshrine strict liability in the law of California in the 1963 case Greenman v. Yuba Power Products,60 which, ac-cording to a 1996 poll of the membership of the Association of Trial Lawyers of America, was the most significant change made to tort law in the previous fifty years.61

In 1965, a scant two years after Yuba Power was decided, William Prosser, a University of California, Hastings College of the Law professor, would incorporate Yuba Power’s strict-liability standard into the American Law Institute’s Second Restatement

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of Torts,62 which greatly influences state supreme courts around the country. (Prosser had argued for strict product liability in his 1941 torts treatise.63) The Second Restatement also legitimized other theories of liability that have come to dominate product-liability litigation: “design defects” (which asks juries to play scientist and determine whether an alternative product design would have reduced or avoided injuries) and “failure to warn” (which asks juries to determine whether products’ warning labels—which have, understandably, proliferated as the result of application of the legal rule—are sufficient to notify customers of product risks).64

In parallel with this expansion of the substantive law of tort, the procedural law went through a major overhaul, and this also facilitated a surge in litigation. Under both the common law and various state codes, filing a lawsuit required pleading a case with particularity—that is, meeting certain thresholds before a legal claim would be al-lowed to proceed.65 These pleading rules were “criticized for overemphasizing form over substance,”66 and when Yale Law School dean Charles E. Clark set about drafting the first Fed-eral Rules of Civil Procedure during the New Deal, under au-thority delegated to the judicial branch by the Rules Enabling Act,67 he effectively gutted the old rules.

Code pleading had controlled the volume of litigation not only by requiring plaintiffs to plead facts with particularity but by requiring them to give notice to a defendant that a suit had been filed, to narrow the legal issues, and to exclude meritless claims.68 The new 1938 Federal Rules, however, dispensed with all such requirements save notice.69 Clark’s vision was to allow virtually any claim to have its day in court—where the truth of the matter would be determined—but it failed to anticipate the economic realities that the new system would create. The Federal Rules’ new, open-ended discovery process enabled wildly expensive fishing expeditions and—in combi-nation with the “American rule” that each side in litigation must bear its own costs70—encouraged shakedown suits and other forms of what was, in effect, legal extortion. Later procedural changes, including a shift to “opt out” class actions in a 1966 amendment of the Federal Rules,71 gave even more power to plaintiffs and the lawyers who represented them.



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Committee in the last campaign were plaintiffs’ law firms—New York asbestos and class action giant Weitz & Luxenberg ($505,400) and Illinois asbestos powerhouse Cooney & Conway ($326,500).39 Over the last five years, Weitz & Luxenberg has also been the third-largest contributor to Senate majority leader Harry Reid (D-Nev.), who counts plaintiffs’ firms as four of his top seven contributors.40 The top two, and seven of the top twenty, donors to Senate majority whip Dick Durbin (D-Ill.) are plaintiffs’ law firms, including Cooney &

iT ’ sallaBouTTheMone yWhen ATLA first set up the Attorneys Congressional Cam-

paign Trust, in 1979, it was a relatively small player, giving only $400,000 to campaigns that year.35 It quickly became a much more powerful force: since 1990, the group’s PAC contributions to federal campaigns have exceeded $33 million, and lawyers al-together, excluding lobbyists, have contributed $1.05 billion to federal candidates (see graphs above).36 Not only have lawyers’ campaign contributions exceeded those of every other industry or profession over the last two decades; they have exceeded those of every other one in each two-year political cycle.37 Trial Law-yers, Inc.’s ability to keep tort reform off the table in the recent discussions over health-care reform is not surprising in light of the fact that lawyers’ congressional-campaign contributions in the last election cycle substantially exceeded the combined total of political donations from doctors, pharmaceutical companies, HMOs, hospitals, and nursing homes.38

As Fred Baron suggested, the plaintiffs’ bar has a stranglehold over the U.S. Senate. Two of the top five private contributors to the Democratic Senatorial Campaign

The Trial Lawyer PAC, Now Named the American Association for Justice, Is Regularly Among the

Top Donors to Federal Campaigns

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Conway and fellow in-state firms Simmons Cooper (his largest donor), Korein Tillery (his second-largest donor), Clifford Law Offices, Corboy & Demetrio, and Power, Roger & Smith—all featured in Trial Lawyers, Inc.: Illinois.41 In total, Trial Lawyers, Inc. dwarfs all other industries in contributing to the Senate leadership (see graphs above).

Since tort law exists primarily at the state level, Trial Lawyers, Inc. has of necessity been a force in state elec-tions as well, giving almost $725 million over just the past decade.42 The trial bar works feverishly to control state supreme courts, and spending on many of these races, in states where they are held, has exploded since business be-gan fighting back (see box, page 15). Trial lawyers also con-

IntroductIon

Senate Majority Leader Harry Reid

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tribute hefty sums to state legislators, attorneys general, and other statewide officials. In some cases, leaders in part-time state legislatures are themselves plaintiffs’ lawyers or affili-ated with personal-injury firms. In New York, for example, State Assembly Speaker Sheldon Silver and State Senate Democratic Conference Leader John Sampson each have “of counsel” relationships with major asbestos- and personal-injury-litigation firms, Weitz & Lexenberg and Belluck & Fox, respectively.43 The lititgation industry’s massive con-tributions and web of financial ties to state political leaders have enabled it not only to block tort-reform efforts but also, increasingly, to craft an affirmative state-level agenda to expand litigation opportunities. Tli

Senate Majority Leader Harry Reid Receives Much of His Funding From Trial Lawyers, Inc....

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The litigation industry realizes that it has a popularity problem, as evidenced by its recent decision to change the name of its top industry association from the Association of Trial Lawyers of America (ATLA) to the American Association for Justice72—a moniker less suggestive of a lobbying group for plaintiffs’ lawyers than of the Justice League of America, the team of superheroes in the 1970s Saturday-morning Su-per Friends cartoons.73 Lawyers will never be popular—doubts about barristers predate the American republic74—but the trial bar has much to gain from obfuscating its avaricious business model and perpetuating its image as a loose cadre of individual advocates who simply hang their shingles and stand up for the little guy against corporate predators.

To meet its public-relations aims, Trial Lawyers, Inc. sup-plements its government-relations efforts with a strong web of ties to the academy, media, and various “consumer” groups. By encouraging law-review articles and amicus briefs; news stories, movies, and television programs; and studies and state-ments from purportedly independent nonprofit organizations, the trial bar works to reinforce its mythical identity—and thus head off and disarm popular opposition.

ivoRy-ToweRadvoc aTesAs the organized plaintiffs’ bar developed, its leader, Melvin

Belli, befriended septuagenarian law professor Roscoe Pound,

ATTorney iMAge MAkers The Litigation Industry Works Through the Academy, Media, and Surrogate Groups to Burnish Its Perception

former dean of Harvard Law School.75 Pound later penned a glowing introduction to Belli’s best-selling book Modern Trials.76 An early critic of the common law, Pound in his later years had become a fierce opponent of the New Deal, and he came to view the common law of tort as a substitute for the bureaucratic state.77 Pound thus became a leading advocate for the plaintiffs’ bar and, by doing so, gave it an air of academic legitimacy. The Harvard professor’s legacy continues to aid the litigation industry: the Pound Civil Justice Institute, a think tank founded by the plaintiffs’ bar in 1956, conducts seminars, including some for judges, and publishes papers to promote the interests of Trial Lawyers, Inc.78

The tort bar continues to cultivate relationships with aca-demics who are willing to speak on its behalf. Drawing upon their august institutions’ reputations for seriousness and their

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own for independence, many of them profit handsomely from their ties to the trial bar. Law professors can earn hefty sums as “expert” witnesses by giving an academic seal of approval to mass-litigation settlements, dodgy fee arrangements, and ques-tionable theories of injury.

Law professors’ work is regularly cited in support of pro-litigation positions, notwithstanding conflicts of interest. Consider Jones v. Harris Associates,79 a case for which the U.S. Supreme Court heard oral arguments on November 2, 2009. In Jones, the trial bar is seeking greater latitude to sue mutual funds over their management fees. A group of law professors signing a friend-of-the-court brief on behalf of the plaintiffs cited the work of three other professors who had already served as expert witnesses in the same case.80 Such practices are often undisclosed; the same trial bar that attacks any study even partly funded by industry tries to obscure its own role in enriching its ivory-tower advocates.

anunsusPec TingMediaTrial lawyers have also aggressively courted the media. The

little-guy-against-corporate-evildoer makes for good theater, so the trial lawyers’ mythology finds its way regularly into the popular media, for instance in the books and movies written by John Grisham and in television shows produced by David E. Kelly.81 Grisham is himself a former plaintiffs’ lawyer who makes no secret of his friendship with his fellow Mississip-pian Dickie Scruggs,82 a leader of Trial Lawyers, Inc. before he pleaded guilty to conspiring to bribe a judge.83

Trial lawyers also work the news media to stir up pub-lic fear, primarily by funneling victim stories to consumer re-porters. News analyst John Stossel, who earlier won nineteen Emmy Awards as a consumer reporter, notes that trial lawyers are the reporter’s “perfect source”:

This partnership between reporters and trial lawyers is not a good thing, but it’s hard for us reporters to resist, because trial lawyers are a perfect source. They do most of the work for us. We don’t need to make phone calls to search for victims; the lawyers identify the most telege-nic of them, the people whose stories make you cry, and they’ll bring them right to our office.

Then they identify the “bad guy” for us. We don’t need to do much original investigating, since the lawyers use their subpoena power to force companies to turn over just about every record they’ve ever produced. The lawyers usually find some dirt (bet they’d find dirt on you if they got all your papers) and hand it to us. We double-check it, but we’re following the lawyers’ script.84

consuMeRgRouPsuRRogaTesTrial Lawyers, Inc. often works with allied groups to cul-

tivate an air of legitimacy in promoting its agenda to the press and general public. Chief among these are the Naderite con-sumer groups that purport to protect the public from alleged corporate abuses. The innocuous-sounding Citizens for Justice and Democracy, headed by Nader disciple Joanne Doroshow, exists exclusively to fight efforts at reforming the civil justice system.85 The group produces scores of position papers and “studies” designed to confuse the facts about the civil justice system; and through a subsidiary organization, Americans for Insurance Reform,86 it makes a practice of blaming the high price of medical-malpractice and other liability insurance on the greed and mismanagement of insurance companies rather than on the underlying litigation being insured against.

Other Naderite organizations—such as the Center for the Study of Responsive Law,87 the Public Interest Research Group,88 and Public Citizen89—are less single-minded in their support of the trial bar, though their public positions signifi-cantly overlap. Public Citizen, for example, pushes Trial Law-yers, Inc.’s agenda directly, through its Litigation Group, which fights preemption of tort claims, arbitration clauses, and other issues adverse to interests of the plaintiffs’ bar;90 and indirectly, through its Health Research Group, which publicly attacks the safety of hundreds of drugs and medical devices that are the bread and butter of the mass-tort bar.91

A Harvard-trained lawyer, Ralph Nader rose to fame in 1965, when the then-thirty-one-year-old published the book Unsafe at Any Speed,92 an attack on the automobile industry and its products. Nader focused his criticism particularly on the Chevrolet Corvair, an economy car that drew upon de-sign features of European car models and thus differed from As

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its American competitors. Although some of Nader’s safety criticisms doubtless had merit, the federal National High-way Transportation and Safety Administration (NHTSA)—founded by Congress in 1966, partially in response to Nader’s book—ultimately determined that “the 1960–63 Corvair compares favorably with contemporary vehicles used in the tests” and that “the handling and stability performance of the 1960–63 Corvair does not result in an abnormal potential for loss of control or rollover, and it is at least as good as the performance of some contemporary vehicles both foreign and domestic.”93 Unfortunately, lay juries are unable to engage in the sort of comparative and cost-benefit analysis employed by the NHTSA. Nader’s attacks on the auto industry, in combi-nation with substantive shifts in legal doctrine, helped gener-

ate waves of automobile “design defect” cases. Before long, the public was left with the impression that “all economy cars are inherently defective for tort purposes.”94

Nader and the organizations he founded were of great use to the litigation industry, which in turn made them recipients

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Prominent plaintiffs’ attorneys have supported Ralph Nader’s consumer crusades “in every way possible.”

Ralph Nader and Joan Claybrook

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of its largesse. In a 1999 interview, Joan Claybrook, president of Public Citizen at the time, admitted that her group received “about $200,000” per year from plaintiffs’ attorneys.95 Because the contributions it receives are not disclosed in public filings, it is impossible to determine whether other trial-lawyer money is funneled indirectly into its coffers. The comments of some trial lawyers would suggest that the sum Claybrook mentions is just part of the story: prominent California plaintiffs’ at-torney Herb Hafif has said that the trial bar supported Nader “overtly, covertly, in every way possible,” and the late Texas tort king Pat Maloney noted that the litigation industry supported Nader’s efforts “for decades,” contributing “a huge percentage of what he raises.”96

Although there is no reason to suspect that “Saint Ralph”97 and his organizational offspring operate from venal motives—many of “Nader’s Raiders” and their successors are true believ-ers in their cause—his crusades seem to have provided him with a good living: the financial disclosure forms that he re-leased during his 2004 presidential campaign showed him as having over $4 million in net liquid financial assets.98

So appreciative of consumer groups is the plaintiffs’ bar that in 1986 ATLA attorneys set up their own charitable trust—the Civil Justice Foundation—to support those that are dedicated to furthering the trial bar’s interests.99 As for Nader, he plans to build an American Museum of Tort Law in his hometown.100

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In America’s federal system, common law is state law. The litigation industry spends heavily on state elections to protect itself. Over the last decade, lawyers and law firms have given almost $725 million to state political campaigns (see graph).

Whereas trial lawyers’ giving at the federal level tends to focus on Congress, at the state level the money is spread among all three branches of government. Because state judiciaries make most tort law—and have the power to invalidate statu-tory tort reforms as unconstitutional—the plaintiffs’ bar has long concentrated on getting its allies onto the state bench (see box, page 15). State legislatures, as the source of statutory tort reform, are another arena of interest: any state legislator who tries to advance tort-reform legislation immediately becomes a target of the trial bar and can expect a very expensive reelection campaign. The litigation industry has even begun to turn its attention to the executive branch, since state attorneys general can farm out representation of the state’s civil lawsuits to attor-neys in private practice, and state treasurers and comptrollers, who control public-employee pension funds, can hire outside lawyers to initiate securities-fraud lawsuits (see box, opposite page). Such litigation can make plaintiffs’ lawyers millions of dollars through contingent-fee contracts, as it has already done in actions against tobacco and pharmaceutical companies.101

fedeR alisMandliTigaTionThough federal courts can hear cross-state disputes, they

must be guided by each state’s underlying substantive legal rules,102 and tight limits on federal courts’ jurisdiction enable clever plaintiffs’ lawyers to keep many of their cases within state judicial systems. For Trial Lawyers, Inc., the federal sys-tem creates a powerful “race to the bottom” effect. Lawyers can shop their case to a favorable court—seeking out a county judge who is an ally of the plaintiffs’ bar, or a locality that has a jury pool with a proven propensity for awarding big verdicts. The odds are low that a defendant will succeed in getting its case removed to federal court;103 so once the local court allows

sTATe shenAnigAns State by State, the Litigation Industry Works to Establish New Lines of Business

state Government relatIons

the case to proceed, the plaintiffs’ attorney will happily find himself playing on home turf.104

Even if a state improves the quality of its elected and ap-pointed officials or enacts legislation that levels the playing field, the federal system allows many plaintiffs to move their cases to some other, more sympathetic state. When the judicial leadership in Madison County, Illinois, for example, decided to combat the county’s reputation as the nation’s worst “judi-cial hellhole,”105 a powerhouse local law firm then known as Simmons Cooper started shifting its caseload to Delaware.106 After tort reforms in Texas made its asbestos cases less profit-able, Dallas plaintiffs’ giant Baron & Budd began directing its cases to California.107 Reforming the tort system state by state is thus very similar to a game of Whack-a-Mole: when trial lawyers are knocked down in one place, they inevitably pop back up somewhere else.

anaggRessivelegisl aTiveagendaHistorically, the trial bar’s political efforts vis-à-vis state

legislatures were defensive. The courts, not the legislatures,

Lawyers and Law Firms Have Contributed Over $700 Million to State Elections Since 2000

Lawyers and Law Firms Have Contributed Over $700 Million to State Elec�ons Since 2000

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Increasingly, Trial Lawyers, Inc. is profiting from its government-

relations efforts in the executive branches of state governments. In 1994, asbestos lawyer Dickie Scruggs of Mississippi joined forces with Mississippi attorney general Mike Moore to sue tobacco companies for any additional Medicaid costs that the state had incurred as the result of health problems of its citizens induced by tobacco use.129 Though he was representing the state government, Scruggs did his work on the basis of a fee arrangement that promised him a share of any eventual proceeds.130 Scruggs later brought in veteran South Carolina trial attorney Ron Motley to assist, and Moore won the cooperation of the attorneys general of other states.131 Eventually, all fifty states became participants in the litigation, and the private attorneys they retained profited handsomely from the contingent fees they scored on the states’ behalf, netting as much as $30 billion from settlements reached in 1998 with the major tobacco businesses.132

In the years since Scruggs, Motley, and other attorneys in the tobacco litigation pocketed those windfalls, plaintiffs’ attorneys around the country have worked to secure similar arrangements with state attorneys general, who collect hefty campaign donations from lawyers to whom they later farm out the state’s work. While some states have adopted eth-ics rules to govern such contingent-fee contracts, including ones requiring competitive bidding and disclosure of con-tract terms, others have put off doing so.133 Darrell McGraw, West Virginia’s attorney general since 1992, was criticized by a judge and the state auditor for the contracting out of state legal business in the tobacco litigation;134 but in recent years, he has given no-bid contracts to private lawyers des-ignated “special assistant attorneys general.”135 In 2001, McGraw hired four private firms that had given $47,500

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West Virginia Attorney General Darrell McGraw

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took the major steps in expanding liability (see box, page 6). In state assemblies, the trial-lawyer lobby largely contented itself with blocking legislative reforms, depending on state su-preme courts to invalidate, on constitutional grounds, those that somehow achieved enactment.108

Over time, while heightened political competition has lowered the litigation industry’s ability to determine the com-position of state judiciaries (see box, page 15), shifting political trends have produced or increased majorities of trial-lawyer-friendly Democrats in state legislatures.109 In turn, Trial Law-

to his reelection campaigns to sue Oxycontin manufacturer Purdue Pharma; the $10 million settlement the firms secured netted them $3 million in fees.136

In addition to these collabora-tions with state attorneys general, trial lawyers are working with state treasurers and comptrollers, who control public-employee pension funds, either directly or as ex officio board members, and are therefore in a position to initiate lawsuits on the funds’ behalf. Because the 1995 Pri-vate Securities Litigation Reform Act (PSLRA)137 specified that the “lead plaintiffs” in securities class actions should be those “most capable of adequately representing the interests of class members”138—that is, they

should be the members of the class with the “largest finan-cial interest” in the litigation —pension funds, as the largest investors in the market, especially those based in populous states such as California and New York, typically control such litigation. After the PSLRA became law, Trial Lawyers, Inc. set its sights on influencing the public officials who con-trol such funds by donating generously to their campaigns.

Investing in officials with control over public pensions has proved to be profitable indeed for firms practicing se-curities law. In New York, for example, two law firms gave a combined $121,800 in campaign funds to Alan Hevesi,139 who, as state comptroller, was the sole trustee and manager of its public pension funds.140 Hevesi subsequently asked the same firms to handle the state pension funds’ lawsuits against Citigroup stemming from the collapse of MCI WorldCom.141 The attorneys collected over $300 million in contingent fees when the case settled in 2004.142 This sort of success has been repeated in other states, such as Louisiana, three of whose public-employee pension funds are among the five most active lead plaintiffs in securities lawsuits around the United States.143


yers, Inc. has worked to increase its profits by encouraging leg-islators to draft statutes that generate more lawsuits, increase recoverable damages, or weaken or eliminate statutes of limita-tion and legal defenses.

Some of the bills and enactments pushed by Trial Lawyers, Inc. at the state level in recent years include:

• Authorizing lead-paint litigation. One of the litigation industry’s new business lines involves suing paint manufacturers over the “public nuisance” of having to eliminate lead-based paint from homes—paint that the manufacturers stopped producing over thirty years ago.110 In Maryland—where asbestos lawyer Peter Angelos, owner of the Baltimore Orioles, pioneered such litigation111—a legislature historically beholden to Angelos’s interests continues to flirt with legislation that would authorize such suits.112

• Expanding consumer-fraud litigation. In response to the enactment of tort reforms, trial lawyers have resorted to the private-enforcement mechanisms of many state consumer-protection acts, which often require no showing of actual injury for plaintiffs to recover.113 Iowa, the last holdout against this tide, finally relented, in 2009, under pressure from trial lawyers.114 Washington broadened its consumer-fraud statutes last year.115 And lawyers have tried, unsuccessfully, to broaden consumer-fraud laws in Michigan and New Hampshire.116

• Expanding securities litigation. In New York, a group of legislators tried to add a private right to sue to the state’s Martin Act117—the state’s securities-fraud statute that Eliot Spitzer, as attorney general, controversially used to reshape the nation’s finance and insurance industries.118 In 2009, the American Tort Reform Association gave the amendment its Silver Award for being that year’s worst civil-justice bill;119 the award is named, ironically, for New

Sheldon Silver,Speaker of the New York State Assembly

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York Assembly Speaker Sheldon Silver, who moonlights as “of counsel” for the mammoth plaintiffs’ asbestos firm Weitz and Luxenberg. 120

• Authorizing new whistle-blower lawsuits. In recent years, New Mexico, New Jersey, and Oklahoma have all adopted new qui tam statutes, which deputize plaintiffs’ lawyers as “private attorneys general” (see box, page 17).121 Many other state legislatures have considered whistle-blower bills without (yet) passing them.122

• Expanding recovery of noneconomic damages. Lawyers have worked aggressively to overturn various state limitations on recovery of noneconomic damages. In 2007, Illinois passed a law permitting recovery for “grief, sorrow, and mental suffering.”123 Also in 2007, Iowa extended recovery for “loss of consortium” from parents of minor children to parents of adult offspring.124 In New Jersey, an effort to create the new damage categories of “mental anguish, emotional pain and suffering, and loss of companionship” passed the legislature but was defeated by a pocket veto.125

• Increasing damage caps. In 2009, Oregon raised its limitations on recoverable damages against the state.126 Trial lawyers have tried to get other states to raise damage limits, albeit without significant success.127

• Eliminating or extending statutes of limitation. Many state legislatures have attempted to eliminate or lengthen the time limits within which plaintiffs must file tort claims. In California last year, only a gubernatorial veto stopped a bill that would have allowed “fair pay” employment claims to be filed, regardless of how much time had passed since the matter in question occurred.128 Tli



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Twenty-one states have popularly elected supreme courts, and thirty-nine states elect judges at some level.144 Since

most tort law reposes in judicial decisions, not legislative en-actments, Trial Lawyers, Inc. has long understood state judi-ciaries to be essential to its business, and has accordingly spent big bucks on judicial races to ensure that its favorite sons join or remain on the bench. Inevitably, the business lobby started fighting back, and expensive—and often ugly—campaigns were the result. Just as inevitably, conflicts of in-terest have arisen between judges’ role as neutral interpreters of the law and their status as elected officials with a need to fund-raise for campaigns.

In the 1980s, Texas emerged as a hotbed of political activity in judicial races, and the home of the first million-dol-lar campaigns. After “business” scored a win over “lawyers” in the 1988 elections, plaintiffs’ lawyer Pat Maloney defiantly asserted: “We are resilient, and we will bounce back.”145 In 1990, another trial lawyer brazenly told Forbes magazine: “[U]ntil last year the plaintiff bar owned and controlled the Texas Supreme Court.”146

Both sides continue to struggle for dominance, in Texas and elsewhere. From the 1990s to the past decade, cam-paign contributions to judicial races nationwide doubled, and judges raised over $200 million in the decade leading up to the 2008 elections.147 In many states, multimillion-dol-lar judicial elections have become the norm (see graph). In some hotly contested races, expenditures of independent in-terest groups on television commercials have exceeded the entire spending of the campaigns themselves.148

In the 2009 elections, the judicial race to watch was the Pennsylvania Supreme Court contest between Democratic incumbent Jack Panella and Republican Joan Orie Melvin.149 Melvin won the race, but not before being outspent by Pan-ella more than two to one.150 Panella’s $1.85 million cam-paign war chest received hundreds of thousands of dollars in contributions from the plaintiffs’ bar, including $500,000 from the Philadelphia Trial Lawyers Association alone.151

Although it failed to get Panella reelected, Trial Lawyers, Inc., in concert with the Michigan Democratic Party, did suc-ceed at its top priority of the previous year: defeating Michi-gan Supreme Court Chief Justice Cliff Taylor, who had pre-sided over a divided court.152 Taylor was a highly respected jurist—the author of the state’s definitive, three-volume text on Michigan personal-injury law, he was endorsed by the

JusTicefoRsale

generally left-leaning Detroit Free Press—but was undone in part by a late “dirty tricks” television commercial that ac-cused him of sleeping on the bench.153

The unseemly nature of high-dollar state supreme court elections drew the attention of the U.S. Supreme Court in Caperton v. A.T. Massey Coal Co.,154 which was decided last year. A divided court determined that Caperton’s constitu-tional due-process rights had been violated when West Vir-ginia Supreme Court Justice Brent Benjamin heard his case after receiving over $3 million in campaign contributions from the chairman of the coal company opposite Caperton in the legal dispute.155 The facts of Caperton tested the outer bounds of propriety, but the conflict of interest they posed was hardly isolated; as Chief Justice Roberts noted, “‘Con-sumers for Justice’—an independent group that received large contributions from the plaintiffs’ bar—spent approxi-mately $2 million” on the same judicial campaign.156

Caperton notwithstanding, it is unlikely that the courts will venture often or more deeply into such a thorny thicket. Judicial elections compromise impartiality, or at least cast suspicion upon it, but there are no easy solutions. Judicial appointment systems can be highly political themselves—witness the federal nomination and confirmation process—and in states with judicial “nominating boards,” the plaintiffs’ bar has often worked to stack such committees with its allies.157 In 2009, the U.S. Chamber of Commerce Institute for Legal Reform—a major player in state judicial campaigns—published a report on such bodies, with an eye toward developing “best practices” that would curb political influence.158

Multimillion-Dollar Campaigns Have Become the Norm in Contested Judicial Elections

13.0

16.1

18.4

20.9

21.2

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Texas

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Candidate Fundraising, State Supreme Court Elec�ons, 2000-08, $, Millions

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Source: Justice at Stake


Until recently, the main purpose of Trial Lawyers, Inc.’s involvement in federal politics was to block reform legislation that would deny it various lucrative lines of business. In 1995, for example, Bill Clinton, an ally of trial lawyers, vetoed the Private Securities Litigation Reform Act (PSLRA),159 which was designed to stop class action “strike suits” against compa-nies whenever their stock’s price sharply declined. But Con-gress overrode the veto,160 and the new law has helped improve the securities litigation climate.161

When, in 1996, Congress tried to pass a product-liabil-ity law designed to curb frivolous suits by limiting punitive damages, it, too, met with a Clinton veto,162 even though he had supported such legislation as governor of Arkansas.163 This time, however, Congress lacked the votes to override.

Clinton’s successor, George W. Bush, was a president friend-ly to litigation reform: as governor of Texas, he had successfully

sue you, sue Me Congress Is Working to Undo Limits on How, When, and Whom Lawyers Can Sue

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steered comprehensive tort reform through the Texas Legisla-ture.164 But with one exception, he was unable to get traction against the lawyer lobby’s Washington power, which doomed his efforts to reform medical-malpractice law by imposing national caps on damages,165 as it did his efforts to shift thousands of questionable, if not fraudulent, asbestos claims out of the courts and into an administrative system.166 Bush’s one success was the Class Action Fairness Act of 2005 (CAFA),167 which prevented plaintiffs’ lawyers from “shopping” large, national class actions to the most lawsuit-friendly jurisdictions in the country by al-lowing defendants to remove them to federal court.

With the Democratic Party currently controlling both Congress and the White House, the litigation industry is tak-ing a somewhat different tack. No longer satisfied with fend-ing off efforts to reform lawsuit abuse, the plaintiffs’ bar is now actively seeking to expand its business opportunities. One of the bills backed by Trial Lawyers, Inc.—the first passed by the new Congress—extends the time that plaintiffs have to file suit, allowing attorneys to dredge up long-dormant claims.168 Other legislation would facilitate legal “fishing expeditions” by permitting claims to go forward that rested upon the shakiest of allegations.169 Still other proposed acts of Congress would expand the universe of parties that plaintiffs can sue.170 One of them would lift a prohibition against suing the government itself, at considerable cost to the taxpayer.171

ledByledBe T TeRPerhaps the clearest evidence of Congress’s new penchant

for generating litigation is the transformation of Lilly Ledbetter, a former employee at a Goodyear Tire plant in Gadsden, Ala-bama,172 into a Democratic symbol of victimization by corpora-tions. Invited to speak on the second night of the 2008 Demo-cratic National Convention, right before keynote speaker Mark Warner, the former governor of Virginia,173 Ledbetter was the subject of a 2007 decision by a divided U.S. Supreme Court that denied her sex-discrimination claim against her former employer

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on the grounds that she had filed her complaint too late.174 The Ledbetter decision prompted a media outcry—“Injustice 5, Jus-tice 4” declared a New York Times editorial175—and then-candi-date Barack Obama adopted Ledbetter’s cause as his own.176

The Lilly Ledbetter Fair Pay Act, which reversed the Su-preme Court’s decision, and made that reversal retroactive to the day before the decision was issued, became law in January 2009.177 It was the first piece of legislation signed by the new president, who proclaimed that Ledbetter was “just a good hard worker who did her job . . . for nearly two decades before discovering that for years, she was paid less than her male col-leagues for doing the very same work.”178

The president’s statement—like most media accounts of the case—is simply false. In fact, Ledbetter admitted in deposi-

tion testimony that “[d]ifferent people that I worked for along the way had always told me that my pay was extremely low” relative to the pay of other workers.179 Ledbetter further noted that she had learned from a superior of a pay discrepancy in 1992, some six years before taking early retirement and filing her lawsuit;180 and that she had learned the specific amount she was underpaid in 1995, three years before filing, at which time she complained that she “needed to earn an increase in pay . . . to get in line with where my peers were.”181

In determining that Ledbetter’s claim was filed outside the six-month statute of limitations specified by Title VII of the 1964 Civil Rights Act, the Supreme Court noted that Ledbet-ter had failed to argue that the statute of limitations should have started running only after she learned of her injury, an

Of the legislative gifts that Congress has bestowed on Trial Lawyers, Inc., one of the most bounteous is the

right—inscribed in qui tam, or “whistle-blower” statutes—to police frauds allegedly committed against the federal gov-ernment. After the False Claims Act (FCA),206 enacted in 1863, was expanded in 1986,207 it became big business for the plaintiffs’ bar. Since then, whistle-blower actions have produced more than $20 billion in claim payments.208

The qui tam provisions of the FCA permit private attor-neys representing whistle-blowers to obtain damages, on the government’s behalf, of three times the amount of money lost in the alleged fraud. The whistle-blower and his attorney can collect up to thirty percent of these sums.209 The resulting wind-falls can total tens of millions of dollars.210

Because of the potential for abuse of such statutes, the courts have worked to limit their reach by insisting that the targets

dePuTizingTRiall aw yeRs

Senator Dick Durbin (left) and Senator Patrick Leahy

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of fraud suits actually intended to defraud the government—as the U.S. Supreme Court did in its unanimous 2008 decision in Allison Engine Co. v. United States.211 The Fraud Enforcement and Recovery Act of 2009,212 signed into law in May 2009, overturns Allison Engine, even with respect to those cases that stem from conduct that occurred before the act’s passage. The new law dramatically expands the plaintiffs’ bar’s reach in qui tam suits by allowing lawyers to go after subcontractors to businesses that do government work, though they never worked directly for the government themselves or intended to commit fraud.213 The bill’s sponsor, Senate Judiciary Committee chairman Patrick Leahy (D-Vt.), has received more than twice as much money from lawyers since 2005 as he has from any other industry, and those donations overwhelmingly come from the plaintiffs’ bar.214 Two of Leahy’s top four donors are California plaintiffs’ firms—toxic-tort giant Girardi & Keese and personal-injury powerhouse Cotchett, Pitre & McCarthy—and he’s also received hefty sums from the American Association for Justice, the political action committee of the plaintiffs’ bar.215

An even more audacious power grab for Trial Lawyers, Inc.’s qui tam business was attempted by Rep. Lloyd Doggett (D-Tex.) during the markup of health-care reform legislation in the House. Doggett tried to insert language into the bill that would allow suits involving Medicare to be filed on behalf of the U.S. government, even when it objected. Fortunately, Republicans on the committee insisted on removing the provi-sion.216 Like Leahy, Doggett received campaign contributions from lawyers in this electoral cycle that were at least double those from any other industry, his largest donor being Nix, Pat-terson & Roach, the giant Texas asbestos-litigation firm.217


with new, liberal discovery rules that enabled plaintiffs’ law-yers to demand essentially any document or file that might be remotely relevant to a lawsuit,188 licensed “fishing expeditions” in federal courts: plaintiffs could file first, seek documents at defendants’ expense, and determine whether they actually had a case once the documents came in.189

In recent years, the Supreme Court has tried to place outer boundaries on these expeditions. In a 2007 case, Bell Atlantic v. Twombly,190 plaintiffs’ lawyers filed a class action alleging that local telephone companies had conspired to restrain trade in violation of the antitrust laws. The Court determined that the plaintiffs’ allegations, even if true, could not sustain a valid claim because the plaintiffs did not allege “enough factual mat-ter (taken as true) to suggest that an agreement was made” among the phone companies—a legal requirement for finding such an antitrust violation.191

In May 2009, the Supreme Court considered another case, Iqbal v. Ashcroft,192 in which a Pakistani Muslim detained after the September 11, 2001, terrorist attacks alleged that he had been mistreated while in custody. Iqbal’s lawsuit targeted various federal officials, including the attorney general of the United States and the director of the Federal Bureau of In-vestigation. The Court determined that Iqbal’s complaint was insufficient to support a claim under Twombly, since the legal standard required proof of intentional discrimination by the individuals named, who would have had to be driven by ani-mus toward the plaintiff, and Iqbal alleged no facts that would permit even an inference of discriminatory intent.193

Needless to say, Twombly and Iqbal, though cases of limit-ed applicability, sent shock waves through the plaintiffs’ bar by threatening to imperil lawyers’ strategy of launching fishing ex-peditions. To “fix” this problem, Pennsylvania Democrat Arlen Specter—whose son Shanin is a major Philadelphia plaintiffs’ lawyer and a vocal public critic of tort reform194—introduced a bill, the Notice Pleading Restoration Act of 2009,195 which would overturn the Supreme Court’s decisions in Twombly

“equitable tolling” rule long recognized in other contexts by the Court.182 The Court’s decision also emphasized that Led-better might have had a valid discrimination claim under an-other statute—the Equal Pay Act—that has a longer statute of limitations.183 Thus, Ledbetter probably did have some legal recourse, notwithstanding her failure to sue earlier—and the fact that her former supervisor, a key witness in the case, had died while she delayed in pursuing her claim.184

Politicians under the sway of Trial Lawyers, Inc., how-ever, were undeterred by these facts. The law enacted in Led-better’s name could have clarified the period in which a Title VII suit can be filed by stating that it would start only upon discovery of the alleged discrimination, a rule that would not have been in conflict with the Court’s actual decision. In-stead, the first act of the 111th Congress gutted the statute of limitations in pay-discrimination claims entirely. It now effectively allows potential plaintiffs to wait years before su-ing, as paycheck after insufficient paycheck piles up, adding to the damages that can be claimed and forcing employers to maintain old employment records indefinitely.185 Moreover, the new law dramatically expands the class of potential liti-gants in such suits by changing the long-standing rule that a claimant had to be an actual victim of discrimination; the new law states that anyone “affected by” the discrimination being alleged can sue.186

goingfishingIn addition to extending the period in which employ-

ees may file pay-discrimination claims, the new Congress is considering legislation that would make it dramatically easier to file suits across the board. As noted on page 6, the 1938 Federal Rules of Civil Procedure abolished traditional plead-ing requirements for filing a civil lawsuit and implemented a system of “notice” pleading whereby a litigant merely has to place a defendant “on notice” of being sued and of the factual and legal claims against him.187 Notice pleading, combined

Federal Government relatIons: exPandInG lIabIlIty

The new Congress is considering legislation that would make it dramatically easier to file suits across the board.



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and Iqbal. Even critics of those decisions, however, have noted that Specter’s poorly drafted bill would likely interfere with statutory pleading requirements well beyond the scope of the Court’s recent decisions.196

secuRiT y-suiTscheMesSenator Specter has not limited himself to protecting Trial

Lawyers, Inc.’s fishing license; he has also been working hard to ensure that plaintiffs’ lawyers can cast their lines in new waters. Notwithstanding stricter rules imposed on securities suits by the 1995 PSLRA197 and the “kickback” conspiracy convictions that put the two most prominent securities class action attorneys, Mel Weiss and Bill Lerach, in federal prison,198 recent financial crises—the bursting of the dot-com bubble, the subprime-mortgage debacle, and the subsequent collapse of major financial institutions—have left ample opportunity for the securities litigation industry to thrive (see graph, right).

In 2008, however, the Supreme Court decided not to ex-tend the judicially created “right to sue” over alleged securities fraud to plaintiffs suing third parties.199 In that case, Stoneridge v. Scientific Atlanta, the Court considered a class action filed by the stockholders of a cable company that had inflated its books. However, their suit was not against the cable company itself but rather its vendors. The Court noted there was no evidence that Congress intended to authorize private securities litigation against third parties under an “aiding and abetting liability” the-ory and that doing so would “expose a new class of defendants” to litigation risks, raise “the costs of doing business,” deter “[o]verseas firms . . . from doing business here,” “raise the cost

of being a publicly traded company under our law,” and “shift securities offerings away from domestic capital markets.”200

Indeed, securities class actions do little more than arbi-trarily shift dollars from one group of shareholders to another. In such suits, one group of shareholders, which bought or sold shares in a given time period, sues the company whose shares they own. Unfortunately, suing the company means essential-ly suing all the other shareholders. Generally speaking, then, small, diversified shareholders, who are about as likely to be holders as buyers of any given security, particularly if they are invested in pension or mutual funds, are also as likely to be defendants as plaintiffs in such litigation.201 In addition to fail-ing to compensate the victims of a successfully executed fraud, securities class actions are ineffective at deterring fraud, since research shows that securities class actions’ settlement values are unrelated to the merits of the underlying cases.202 Securities lawsuits, therefore, serve mainly to enrich the plaintiffs’ bar by extracting massive settlements from companies experiencing stock-price turbulence.203

Nevertheless, last summer Senator Specter introduced the Liability for Aiding and Abetting Securities Violations Act of 2009,204 which would overturn Stoneridge and create an ex-plicit, open-ended private right of action against anyone who provided “substantial assistance” to anyone else guilty of vio-lating “any rule or regulation” under any of the vast number of securities laws.205 Specter’s bill would go far beyond the narrow facts of the Stoneridge case to create a whole new class of secu-rities class action defendants—and a whole new spectrum of legal shakedown opportunities for Trial Lawyers, Inc. Tli

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Over the Last Ten Years, Securities Class Action Settlements Have Skyrocketed

1,231

5,154

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The Democrats in Washington can’t seem to decide what they think about arbitration. On the one hand, one of the top legislative priorities of the congressional leadership and the White House is the Employee Free Choice Act (EFCA),218 which calls for mandatory arbitration of all union disputes. So deep is the EFCA-backers’ faith in arbitration that the law would even empower government-appointed arbitrators to write labor contracts from scratch when newly formed unions cannot agree to terms with management—in effect, to dictate the terms of a labor “contract” without reference to any actual underlying contract into which the parties freely entered.219

On the other hand, congressional leaders are waging an all-out war to eliminate all arbitration clauses in consumer and employment contracts. Such provisions are standard in

ConTrACT killing Trial Lawyers, Inc.’s Allies in Congress Are Trying to Scale Back Private Arbitration

From the time of the New Deal onward, the Left has generally favored a strong national regulatory regime,

while conservatives have generally fought its relentless expansion. It is therefore curious that the Democratic majority in Congress should be considering bills permitting tort actions to be brought under state law against the financial242 and automobile243 industries, for example—even if such state tort claims conflict with the federal regulatory regime.

State tort litigation can make a mess of the federal regulation of interstate commerce. Consider the situation in health care, one of the most heavily regulated—and litigated—industries. In 2008, the U.S. Supreme Court considered a case, originating in New York, in which a patient had been injured by the bursting of a balloon catheter during surgery.244 The patient alleged that Medtronic, the device’s manufacturer, was at fault. The facts of the case, however, told a different tale: the catheter’s labeling—as required by the U.S. Food and Drug Administration (FDA)—indicated that it should not be used in “calcified” arteries and that it was designed to withstand only “eight atmospheres” of “rated burst pressure.”245 As the

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many industries—they are indeed the only way that small in-juries can ever get compensated, given the expense of litiga-tion that often makes legal representation unavailable, because such cases offer plaintiffs’ attorneys only paltry contingent fees. But arbitration and other forms of alternative dispute resolution remove the middleman—the trial lawyer—which, to the plaintiffs’ bar’s political patrons, makes such extralegal approaches unthinkable.

ThevalueofaRBiTR aTionIn contrast to the EFCA’s heavy-handed provisions,

standard employment and consumer arbitration contracts operate against a backdrop of preexisting contractual norms and rules of law. Professional arbitrators—usually senior attorneys

Court noted, however, Riegel’s doctor failed to heed these warnings.246 The artery into which the doctor inserted the catheter was “heavily calcified,” yet he attempted to force a full ten atmospheres of pressure through it.247

Fortunately, Congress included express language in 1976 statutory amendments that forbade the states from setting standards for medical devices beyond those required by the FDA.248 On that basis, the Court made the commonsense ruling that Riegel’s lawsuit against the manufacturer was barred.249 Unfortunately, the express preemption language that governs medical devices does not apply to all FDA-regulated products. Indeed, such clauses are rare within the federal code, much of which was written before the litigation explosion of the last five decades.

Perhaps unsurprisingly, the lawyer-dominated Congress is working to eliminate the statutory provision that barred Riegel’s product-liability claim. Worse, the bill in question, the Medical Device Safety Act of 2009,250 would permit suits to proceed that stem from injuries that originated long before the law’s effective date, if otherwise valid under state law.



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or retired judges—resolve claims without incurring the time and expense of civil litigation, which takes, on average, more than two years220 and can cost thousands of dollars.

Thus, arbitration has served as a major avenue for provid-ing justice to small claimants. In 2002, the American Arbitra-tion Association handled more than 200,000 claims—a figure corresponding to roughly 80 percent of all federal civil cases.221 In 2006, the National Arbitration Forum handled 214,000 ar-bitrations dealing solely with debt collection.222

Although you wouldn’t know it from the criticisms issue from the trial bar and its allies, these private arbitration systems are not tilted in business’s favor. A November 2009 study re-leased by the Searle Center on Law, Regulation, and Economic Growth at Northwestern University School of Law examined comprehensive data sets of consumer arbitrations and found that after controlling for variations in case characteristics, con-sumers were more likely to prevail in arbitration than in court and that there was “no statistical difference in the amount they were awarded as a percentage of the amount sought.”223

Americans in general realize the value of arbitration. When asked whether they would choose litigation or arbitration if they could “choose the method” of resolving “any serious dis-pute” between themselves and a company, 82 percent of those surveyed said that they would opt for arbitration.224 And 71 percent said that they opposed Congress’s “remov[ing] arbitra-tion agreements from contracts consumers sign with compa-nies.”225 Unfortunately, such consumer sentiment may not be sufficient to hold back Congress’s assault on contract, which is propelled by the lobbying clout of Trial Lawyers, Inc.

funnyBusinessBefore he was a senator, Al Franken (D-MN) entertained

the public as a writer and performer on the sketch comedy show Saturday Night Live. Perhaps it’s fitting, then, that Fran-ken’s first legislative success,226 an amendment supported by Trial Lawyers, Inc.,227 became the premise of comedians’ jokes and spoof websites.

On October 1, Senator Franken took to the Senate floor to relate the sad plight of Jamie Leigh Jones, who claimed that she was harassed, drugged, and gang-raped four days after ar-riving in Iraq to work for Kellogg Brown & Root (KBR).228 Jones initially filed an arbitration complaint, then sought to sue her employer in court. KBR tried to consolidate the com-plaint before the arbitration panel, which Jones opposed. After three years of legal wrangling, the Fifth U.S. Circuit Court of Appeals held the arbitration clause unenforceable in Jones’s case because her claimed injury was not “related to” her em-ployment, and the court gave Jones the go-ahead to proceed with her civil claim.229

Franken said on the floor of the Senate that three years was “simply too long for a rape victim to wait, just to have her day in court.”230 He therefore proposed an amendment to an appropriations bill for the Defense Department that would, he said, “extend much of the Fifth Circuit’s reasoning to gov-ernment contractors who continually subject workers to these so-called mandatory arbitration clauses.” But it would do so, he said reassuringly, only by “narrowly target[ing] the most egregious violations.”231

When thirty Republican senators voted against Frank-en’s amendment, they became fodder for comic ridicule. The Daily Show’s Jon Stewart exclaimed, on the air, “I understand we’re a divided country, some disagreements on health care. How is anyone against this?”232 A video posted on the web-

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site of MSNBC’s Rachel Maddow went viral, the Democratic Senatorial Campaign Committee went on the attack,233 and the Republican senators were mocked on a spoof Internet site, www.republicansforrape.org.

The problem with the comedic and political reaction is that Franken’s amendment was not, as he claimed, “narrowly target-

ed.” Rather, Franken’s legislation makes any arbitration clause in the employment contracts of any defense contractor inapplicable to “any claim under Title VII of the Civil Rights Act of 1964” or “any tort related to or arising out of” an “intentional infliction of emotional distress” or “negligent hiring, supervision, or reten-tion.”234 In essence, Franken’s amendment prevents every defense

On October 12, 2009, lawyers at the class action firm Cough-

lin Stoia Geller Rudman & Robbins reached a settlement with toy maker Mattel and its Fisher-Price subsidiary resolving a suit over the 2007 recall of 967,000 toys, manufactured in China, that may have contained lead-based paint.251 The lawyers stand to pocket a hefty $12.9 million in fees252—likely to be a high percentage of the total settlement value253—but the litigation overall is hard to condemn: a major manufacturer distributed products that contained a dangerous substance banned under U.S. law.

Notwithstanding the righteous concern about Mattel’s potentially dangerous products, the congressional response to the public panic over the lead-containing toys—the Consumer Product Safety Improvement Act (CPSIA),254 signed into law on August 14, 2008—is a regulatory nightmare and litigation time bomb that threatens to place virtually every producer of items for children on the wrong side of the law. Hawked by lawyer-allied consumer groups like the Public Interest Research Group,255 and pushed by House Speaker Nancy Pelosi (D-Cal.), the bill was drafted in the House under the watchful eye of Energy and Commerce Committee Chairman Henry Waxman (D-Cal.), a longtime ally of trial lawyers whose second-largest campaign donor over the last twenty years has been the plaintiff’s bar’s political action committee, now known as the American Association for Justice.256 That same lawyer PAC once employed as a registered lobbyist David Strickland, who developed the CPSIA in the Senate, where he served as counsel to the Commerce Committee.257 (Strickland now oversees American automobile regulation as the head of the National Highway Transportation Safety Administration.)

With such a cast of characters drafting the bill, it is unsurprising that the CPSIA goes beyond the lead-paint

ToysToRyconcerns that provoked the health scare. Anne Northup, a commis-sioner of the federal Consumer Product Safety Commission (CPSC), observes that the law reaches prod-ucts “that do not create a lead haz-ard for children” and that “such ordinary items as zippers, buttons, belts, the hinge on a child’s dress-er—and even that bicycle from San-ta Claus—are outlawed,”258 mak-ing any manufacturer or retailer of such products subject to a lawsuit premised on an alleged violation of the statute’s provisions.

To make things easy for the law-yers, the statute authorizes an open website for reporting violations—which attorneys will doubtless use

both to identify claims and “establish” purported wrong-doing.259 Also waiting in the wings are suits by pioneer-ing, politically ambitious state attorneys general (see box, page 13), who are authorized to enforce the law alongside the CPSC.260 As reported in Crain’s Chicago Business, suits arising from the CPSIA are among the “most likely” suc-cessors to the litigation industry’s long-standing asbestos-lawsuit profit center.261

The CPSIA’s costs are not conjectural—the CPSC esti-mates that the law cost toy manufacturers $2 billion in the eight months following its enactment262—and they will grow exponentially once all of the statute’s testing requirements come into effect. Economies of scale permit large manufac-turers like Mattel to meet the CPSIA’s onerous testing and labeling requirements, but the prohibitive cost of complying with these rules has prompted small manufacturers and re-tailers of toys to shut their doors.263 Although the CPSIA has generated many a public outcry, Congress has predictably resisted holding hearings to learn about the grievances of those affected.

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contractor from contracting with its employees to choose private arbitrators over the civil courts to resolve virtually any kind of employment dispute—a far broader provision than Franken’s invocation of the gruesome allegations in Jones’s case would sug-gest. But given the public caricature of Franken’s amendment, it is unsurprising that it made it into the final law.235

anassaulTonconTR ac TSenator Franken’s amendment is but one of the litigation

industry’s attacks on private arbitration. Other such bills be-ing pushed in Congress by Trial Lawyers, Inc. include:

• The Fairness in Nursing Home Arbitration Act (H.R. 1237, S. 512) would make unenforceable all arbitration clauses regulating disputes between nursing homes and their boarder-patients.236

• The Mortgage Reform and Anti-Predatory Lending Act (H.R. 1728), which passed in the House of Representa-

tives, would make unenforceable arbitration clauses in any mortgage loan or home-equity line of credit.237

• The Payday Loan Reform Act (H.R. 1214) would pres-ent challenges to arbitration clauses in “payday loans,”238 and the Taxpayer Abuse Prevention Act (S. 585) would prohibit arbitration clauses in loans given in anticipation of tax refunds.239

• The Consumer Fairness Act (H.R. 991) would make consumer-arbitration contracts unenforceable,240 while the Arbitration Fairness Act (H.R. 1020, S. 931) would go even further and make unenforceable arbitration clauses in all employer, franchise, and consumer contracts.241

Each of these pieces of legislation would reduce consumer choice, increase costs, and deny compensation to many truly injured individuals. But they would all help the bottom line of Trial Lawyers, Inc. Tli

One way that Trial Lawyers, Inc. is exploiting its con-gressional influence is by seeking an old-fashioned

tax break. A group of legislators led by Republican-turned-Democrat Arlen Specter—“the favorite senator of the trial lawyers”264—has introduced a bill giving the plaintiffs’ bar a $1.6 billion cut in its taxes.265

Under the traditional common law, “maintenance” and “champerty” were crimes (and torts). Generally speaking, it was illegal for anyone, including an attorney, to maintain, support, or promote another’s litigation (maintenance), whether or not an agreement existed to pay the supporter a portion of a lawsuit’s proceeds (champerty), should there be any.266 On its face, the personal-injury bar’s financing structure—the “contingent fee,” the share of the proceeds that a winning client pays his attorney, who has fronted the cost of the litigation—runs afoul of the historical understanding of champerty. Therefore, expenses in contingent-fee cases have been treated by courts not as support of litigation per se but rather as loans to clients, to be repaid upon a winning lawsuit’s resolution.267

The IRS has thus forbidden plaintiffs’ lawyers working on the basis of contingent-fee arrangements to deduct, for tax purposes, litigation costs as “expenses” when they are incurred. Rather, such expenses are treated as loans, to be expensed as “losses” only in the event that the loan is “uncol-lectible” after a losing case has been closed (or, alternatively, to be deducted from the sum of taxable proceeds following profitable verdicts or settlements).268

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Specter’s bill would change the IRS rule and allow all litigation costs to be expensed immediately, even though other kinds of loans generally are not. This tax break would encourage lawyers to file both a greater number of cases and weaker cases, and “the federal government [would], for all intents and purposes, share in the cost and risk of bringing the initial litigation. Under current and certainly potential future tax laws, this could be as much as [forty percent] of the cost of bringing litigation.”269

Unsurprisingly, the trial bar’s advocates in Congress would prefer to avoid an up-or-down vote on the legislation on its own. Thus, lawyer-lobbyists have worked to “tuck it into something”270 else—for example, a 2008 bill that extended (but did not change) various research-and-development and energy tax credits.271


conclusIon

The academics and judges who transformed American tort law and civil procedure in a relatively brief period of time did not anticipate the full consequences of the changes they wrought, though they received fair warning from a few of their colleagues that some of the changes would prove calamitous.272 Even defensible expansions of liability had the unhappy effect of creating a litigation industry that has depressed economic growth and impeded American competitiveness. As Harvard Business School professor Michael Porter has observed, the competitive advantage of U.S. companies is hampered by a tort-law system that is “extreme compared [with that of ] other nations” because “[t]he risk of lawsuits is so great and the con-sequences so potentially disastrous.”273

Reforming the liability system should be a political prior-ity, especially in a deep recession like the present one, with double-digit unemployment, but it has proved difficult, given the litigation lobby’s clout. Last fall, former Democratic Na-tional Committee chairman Howard Dean candidly admitted, “The reason why tort reform is not in the [health-care reform] bill is because the people who wrote it did not want to take on the trial lawyers.”274 In December, the president of the trial lawyers’ lobbying group, the American Association for Justice, declared the organization’s lobbying effort on health care “a stunning victory,”275 as well he should have: neither the House nor Senate health-care bills dared to tackle liability reform, and the version that passed the House contained provisions that, perversely, would impede liability reform (by discouraging state reforms adverse to the litigation industry’s interests)276 and ex-pand litigation opportunities (by empowering state attorneys general to enforce federal regulatory provisions, which could involve the hiring of private lawyers on a contingent-fee basis to help them do so).277 (At the time this report went to print, it was unclear whether these provisions would be included in the final House-Senate bill.)

It is unsurprising that the litigation industry has evolved into such a powerful political force. Whereas trial lawyers’ in-terests are concentrated in the issue of liability, on which their

livelihoods depend, opposing factions, like business and the medical profession, have interests that are diffuse. In the pub-lic-policy universe, doctors care about liability but are more worried about the repercussions of health-care reform and the size of Medicare reimbursements; car companies care about liability but are more anxious about cap-and-trade legislation and fuel-efficiency standards. In some instances, industries can be at cross-purposes; efforts at asbestos-liability reform, for ex-ample, were stymied in part by a conflict of interest between insurers and manufacturers.278

In addition to holding these systemic advantages, lawyers have shown themselves to be peculiarly capable of navigating the waters of modern political influence. Campaign finance laws that limit contributions (to $2,400 per candidate at the federal level)279 frustrate concentrated giving in many indus-tries, but the organized plaintiffs’ bar has proved adept at coor-dinating its giving, both within firms and across states.

Notwithstanding the power of the lawyer lobby, efforts at reform are not futile. Even in the current political environment, some states have been working to restore sanity to their own liability systems. In 2009, for instance, Oklahoma’s legislature passed a comprehensive package of tort reforms that included

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stricter evidentiary standards, caps on noneconomic damages, and limitations on a lawyer’s ability to “shop” cases to the most favorable forum.280 Over time, states that rein in lawsuit abuse have an advantage in attracting businesses and doctors.

Furthermore, only five years ago, a differently constituted Congress did pass a major liability reform, the Class Action Fairness Act (CAFA),281 that limited lawyers’ ability to bring large national class actions in the most favorable state courts. Barack Obama, then the junior senator from Illinois, voted for CAFA, unlike his major rivals for the Democratic presi-dential nomination.282 The president has, in fact, expressed an understanding of the problems of lawsuit abuse,283 and his large and diverse base of campaign donors has made him less dependent on Trial Lawyers, Inc. than congressional leaders such as Senators Harry Reid of Nevada and Dick Durbin of Illinois. Although the president has voiced opposition to dam-

age caps, his rhetoric and his record suggest that, were congres-sional leadership to change, he might be open to the funding of state-level experiments in reform or supporting legislation that, like CAFA, tightens federal procedural rules.

Reforming America’s liability rules is not easy: the lawsuit lobby is unusually strong, and America’s system of government is structured to make change difficult. But the very reason that Trial Lawyers, Inc. devotes so many resources to its government-relations and public-relations efforts is that the political objective for which it is fighting—the maintenance of the oversized law-suit industry—is both harmful and unpopular. In recent years, proponents of legal reform have made progress, if haltingly, and the American public does want to curb lawsuit abuse. So while the litigation industry today is aggressively leveraging its politi-cal power to advance its self-interested legislative agenda, change for the better may not be too far beyond the horizon. Tli

The following federal legislation is mentioned in this report:

ExPANDING LIABILITY• Lilly Ledbetter Fair Pay Act (H.R. 11, S. 181) (employment discrimination) (enacted 1/29/2009 as Public Law 111-2)• Notice Pleading Restoration Act (S. 1504) (lawsuit-filing standards)• Liability for Aiding and Abetting Securities Violations Act (S. 1551) (securities lawsuits)• Carmelo Rodriguez Military Medical Liability Act (H.R. 1478) (medical-malpractice lawsuits)• Fraud Enforcement and Recovery Act (S. 386) (whistle-blower lawsuits) (enacted 5/20/2009 as Public Law 111-21)

RESTRICTING PRIVATE ARBITRATION• “Franken Amendment” (SA 2588) (defense contractors) (enacted 12/19/2009 as Public Law 111-118)• Fairness in Nursing Home Arbitration Act (H.R. 1237, S. 512) (nursing homes)• Mortgage Reform and Anti-Predatory Lending Act (H.R. 1728) (mortgages and home-equity lines)• Payday Loan Reform Act (H.R. 1214) (payday loans)• Taxpayer Abuse Prevention Act (S. 585) (tax-refunds loans)• Consumer Fairness Act (H.R. 991) (consumer contracts)• Arbitration Fairness Act (H.R. 1020, S. 931) (employer, franchise, and consumer contracts)

PROHIBITING FEDERAL PREEMPTION• Consumer Financial Protection Agency Act (H.R. 3126) (national banks)• Right to Clean Vehicles Act (H.R. 609) (automobile emissions standards)• Medical Device Safety Act (H.R. 1346, S. 540) (medical devices)

FACILITATING CONSuMER AND HEALTH-CARE LAWSuITS• Consumer Product Safety Improvement Act of 2008 (lead standards) (enacted August 14, 2008 as Public Law 110-314)• Affordable Health Care for America Act (H.R. 3962) (state attorney-general lawsuits)

CuTTING LAWYER TAxES• “Trial-Lawyer Tax-Break Bill” (H.R. 2519, S. 437) (contingent-fee deductibility)

For a full and updated listing of pending trial-lawyer “earmarks,” visit www.triallawyerearmarks.com, sponsored by the U.S. Chamber of Commerce Institute for Legal Reform.

Appendix


endnotes

1. See Towers Perrin, 2009 UPdaTe on U.s. TorT CosT Trends 5 (2009), http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2009/

200912/2009_tort_trend_report_12-8_09.pdf (costs as of 2008). As noted by Manhattan Institute fellow Walter Olson: [The Towers Perrin] studies are particularly useful in assessing long-

term trends in liability-cost burdens (since long-term data will tend to transcend the vagaries of passing hard/soft markets) and in international comparisons (since well-defined liability insurance markets exist in other advanced countries and can be subjected to comparable metrics). Perhaps for those very reasons, and because the figures are widely acknowledged within the industry as having a high degree of accuracy in measuring what they set out to measure, the [Towers Perrin] numbers have been furiously attacked by organized trial lawyers and their allies.

Posting of Walter K. Olson to PointofLaw.com, http://www.pointoflaw.com/archives/2008/11/tillinghasttowe.php (Nov. 21, 2008, 11:14 EST). For a response to these criticisms, see Posting of James R. Copland to PointofLaw.com, http://www.pointoflaw.com/archives/000877.php (Jan. 19, 2005, 19:11 EST); see also Towers Perrin, CorreCTions and ClarifiCaTions (2005), http://www.towersperrin.com/tillinghast/pdf/response_0517.pdf.

2. See, e.g., Ronen Avraham et al., The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums (Nat’l Bureau of Econ. Research, Working Paper No. 15371, 2009), available at http://ssrn.com/abstract=1478789 (finding that various state-level tort reforms reduce employer-sponsored health-plan premiums one to two percent each).

3. See infra p. 6.4. See Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009).5. See Liability for Aiding and Abetting Securities Violations Act of 2009, S.

1551, 111th Cong. (2009).6. See H.R. 2519, 111th Cong. (2009); S. 437, 111th Cong. (2009).7. See, e.g., Arbitration Fairness Act of 2009, H.R. 1020, 111th Cong. (2009);

S. 931, 111th Cong. (2009).8. See, e.g., Medical Device Safety Act of 2009, H.R. 1346, 111th Cong.

(2009); S. 540, 111th Cong. (2009).9. See Press Release, Common Good, New Survey Finds That Only Sixteen

Percent Of American Adults Trust The Legal System To Defend Them Against Baseless Claims (June 27, 2005), available at http://commongood.org/assets/attachments/140.pdf.

10. See Al Kamen, Just Don’t Call Them the Suers, wash. PosT, July 14, 2006, at A19.11. See Center for Responsive Politics, http://www.opensecrets.org/industries/

indus.php?ind=K01 (last visited Jan. 13, 2010).12. See National Institute on Money in State Politics, Table 1: Attorneys &

Law Firms Contributions to All Candidates and Committees, http://www.followthemoney.org/database/IndustryTotals.phtml?f=0&s=0&b%5B%5D=K1000 (last visited Jan. 13, 2010).

13. See Center for Responsive Politics, supra note 11. As the “Rank” column indicates, lawyers and law firms, not including lobbyists, rank first for every election cycle, except for 2004 and 2008. The “industry” ranking first in those cycles is “retired persons,” so lawyers are the largest givers among industries and professions in each election cycle. See also infra note 36.

14. In 2003, Texas passed comprehensive tort reform, the Med-Mal & Tort Reform Act of 2003, H.B. 4, 78th Leg. (Tex. 2003) (enacted), and Mississippi passed comprehensive reform in 2004, see H.B. 13, 2004 Ext. Sess. (Miss.) (enacted). Both states have seen a subsequent reduction in excessive litigation. See, e.g., James Tanella, Presentation at Mealey’s Asbestos Super Conference, Sept. 26, 2007, p. 11 of hard copy and Oct. 11, 2007 e-mail correspondence.

15. See In Re: Silica Products Liability Litigation, MDL No. 1553 (S.D. Tex.) (June 30, 2005) (Order No. 29 at 116) (“[T]hese diagnoses were driven by neither health nor justice; they were manufactured for money.”). New asbestos filings fell dramatically: from a high of 70,412 nonmalignant and 6,435 malignant claims filed in 2002 to 2,462 malignant and 2,596 nonmalignant claims in 2007. See Tanella, supra note 14 at 12 and e-mail.

16. See Richard Fausset, Bribery Case Brings Down Legal Legend, L.A. Times, Mar. 15, 2008.

17. See Michael Parrish, Leading Class-Action Lawyer Is Sentenced to Two Years in Kickback Scheme, N.Y. Times, Feb. 12, 2008.

18. See Jonathan D. Glater, High-Profile Trial Lawyer Agrees to Guilty Plea, N.Y. Times, Mar. 21, 2008.

19. See Neil A. Lewis, For Edwards, Drama Builds Toward a Denouement, N.Y. Times, Sept. 19, 2009.

20. John Fund, Have You Registered to Sue?, wall sT. J., Nov. 6, 2002, available at http://www.opinionjournal.com/diary/?id=110002581.

21. See Jason Embry, Baron’s Rebuilding Efforts Already Showing Results, aUsTin amer.-sTaTesman, Nov. 12, 2006.

22. See Brian C. Mooney, Candidates Got Around with a Little Help From Their Friends, BosTon GloBe, Dec. 18, 2007; Gromer Jeffers, Jr., Dallas Lawyer Fred Baron Paid for Edwards’ Mistress To Relocate, dallas morninG news, Aug. 9, 2008.

23. See Center for Responsive Politics, http://www.opensecrets.org/industries/contrib.php?ind=K01&cycle=2002 (last visited Jan. 13, 2010).

24. John Fabian Witt, The Political Economy of Pain 20, Apr. 2, 2008, http://commongood.org/assets/attachments/Witt.pdf.

25. See G. edward whiTe, TorT law in ameriCa: an inTelleCTUal hisTory 3 (1980).

26. See Witt, supra note 24, at 20-21.27. Robert L. Rabin, Some Reflections on the Process of Tort Reform, in

PersPeCTives on TorT law 284 (Rabin ed., 3d ed. 1990).28. See American Association for Justice, An Expanded History of ATLA/AAJ, http://

www.justice.org/cps/rde/xchg/justice/hs.xsl/2079.htm (last visited Jan. 13, 2010).29. See id.30. John faBian wiTT, PaTrioTs and CosmoPoliTans: hidden hisTories of

ameriCan law 241 (2007).31. See id.32. Witt, supra note 24, at 23.33. John Fabian Witt, First, Rename All the Lawyers, N.Y. Times, October 24, 2006.34. See Kamen, supra note 10.35. See Neil Hrab, Association of Trial Lawyers of America: How It Works with

Ralph Nader Against Tort Reform 2 (Jan. 2003), http://www.heartland.org/custom/semod_policybot/pdf/11566.pdf.

36. See Center for Responsive Politics, http://www.opensecrets.org/industries/indus.php?ind=K01 (last visited Jan. 13, 2010). Data include contributions from lawyers in defense-oriented and generalist firms, not simply those of plaintiffs’ lawyers. Thus, contributions from what we call Trial Lawyers, Inc. constitute only a portion of these dollars. However, even if plaintiffs’ lawyers give only half of all such contributions (according to Towers Perrin, a consulting firm, plaintiffs’ lawyers collect about 57 percent of litigation dollars that go to attorneys), such contributions would generally exceed those from most other industries. In the last political cycle, lawyers gave more than twice as much to federal campaigns as any other industry save securities/investment (and lawyers gave 97 percent more than that industry). See id. at http://www.opensecrets.org/industries/mems.php?party=A&cycle=2008 (last visited Jan. 13, 2010).

There is good reason to believe that bundled contributions from the plaintiffs’ bar well exceed those from the defense bar. Big corporate-defense firms do show up on contributions tables, but that is primarily because of their size. The average lawyer at the giant defense firm DLA Piper has contributed $118 to federal campaigns, and at peer firms K&L Gates and Hogan & Hartson it has been $232 and $264, respectively; by comparison, the average lawyer at the plaintiffs’ firm Simmons Cooper gave $4,231, at Girardi & Keese $7,917, and at Clifford Law Offices $14,175. See id. at http://www.opensecrets.org/industries/contrib.php?cycle=2010&ind=K01 (last visited Jan. 13, 2010) (denominators—number of attorneys—taken from firms’ websites).

Moreover, the defense bar and plaintiffs’ bar have congruent economic interests when it comes to litigation: loose substantive liability rules, loose pleading standards, and open-ended discovery rules increase the defense bar’s profits. While defense lawyers are less likely to lobby aggressively against tort-reform legislation—out of a desire not to antagonize their clients—very few lawyers, whether representing plaintiffs or defendants, advocate litigation reform.

37. See id. at http://www.opensecrets.org/industries/indus.php?ind=K01 (last visited Jan. 13, 2010). Figures for lawyers include all non-lobbyist contributions from lawyers and law firms. See also supra note 13.

38. See id. at http://www.opensecrets.org/industries/memsphp?party=A&cycle= 2008 (last visited Jan. 13, 2010).39. See id. at http://www.opensecrets.org/parties/contribphp?cmte=DSCC& cycle=2008 (last visited Jan. 13, 2010). A third top-five contributor, Fortress

Investment Group, is a New York–based financial company that employed plaintiffs’ lawyer John Edwards. The other two top-five contributors are financial giants Goldman Sachs and JPMorgan Chase.

40. See id. at http://www.opensecrets.org/politicians/contrib.php?cycle=2010&cid=N00009922&type=C&mem= (last visited Jan. 13, 2010). The other large plaintiffs’ bar contributors to Sen. Reid have been the Law Offices of Peter G. Angelos, Simmons Cooper LLC, and Girardi & Keese.

41. See id. at http://www.opensecrets.org/politicians/contrib.php?cycle=2010&cid=N00004981&type=C&mem= (last visited Jan. 13, 2010). “Retired



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K STREETpersons” have given more collectively to Sen. Durbin than has Korein Tillery, though not more than has Simmons Cooper.

42. See National Institute on Money in State Politics, http://www.followthemoney.org/database/IndustryTotals.phtml?f=0&s=0&b%5B%5D=K1000 (last visited Jan. 13, 2010).

43. See Brendan Scott, Sampson Playing a Law-Firm Shel Game, N.Y. PosT, Jan. 4, 2010.44. See Robert Wallace, The King of Torts, life, Oct. 18, 1954, at 71.45. See Witt, supra note 24, at 24–25.46. See Jim Herron Zamora, “King of Torts” Belli Dead at 88, S.F. Chron., July

10, 1996.47. See melvin m. Belli, modern Trials (1954); see also Zamora, supra note 46.48. 24 Cal.2d 453 (1944).49. See generally PaUl a. offiT, The CUTTer inCidenT: how ameriCa’s firsT

Polio vaCCine led To The GrowinG vaCCine Crisis (2005).50. See Melvin M. Belli, The Adequate Award, 39 Cal. l. rev. 1 (1951).51. See Witt, supra note 24, at 30.52. See Zamora, supra note 46.53. See Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 456 (1944).54. See id. at 459.55. See id. at 456.56. The doctrine of res ipsa loquitor dates to the 1863 British case Byrne v.

Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (holding that evidence that a barrel of flour had dropped from a store window onto a passerby’s head was sufficient on its face to permit an inference of negligence).

57. See Offit, supra note 49, at 159.58. Escola, 24 Cal. 2d at 461-68 (Traynor, J., concurring).59. Id. at 461.60. Greenman v. Yuba Power Products, Inc. 59 Cal. 2d 57 (1963).61. Jeffrey Robert White, Top 10 in Torts: Evolution in the Common Law, Trial,

July 1996, at 50-53.62. See resTaTemenT (seCond) of TorTs § 402A (1965).63. See william l. Prosser, Prosser on TorTs, 688-89 (1941).64. See resTaTemenT, supra note 62, at § 402A & comment j (“In order to

prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.”).

65. See Charles alan wriGhT & mary Kay Kane, law of federal CoUrTs 471 (6th ed. 2002); see David M. Roberts, Fact Pleading, Notice Pleading, and Standing, 65 Cornell l. rev. 390, 395–96 (1980).

66. See Christopher M. Fairman, The Myth of Notice Pleading, 45 arizona l. rev. 987, 990 (2003).

67. Pub.L. 73-415, 48 Stat. 1064 (1934).68. See 5 Charles alan wriGhT & arThUr r. miller, federal PraCTiCe and

ProCedUre § 1202, at 68 (2d ed. 1990).69. See fed. r. Civ. P. 8(a)(2).70. Unlike in most other countries in the world, the longstanding American rule

has been that each party normally must pay its own fees and expenses. See, e.g., Arcambel v. Wiseman, 3 U.S. (3. Dall.) 306 (1796). For a discussion of the policy relevance of this rule, and how to incorporate loser-pays principles into American law, see Marie Gryphon, Greater Justice, Lower Cost: How a “Loser Pays” Rule Would Improve the American Legal System, manhaTTan insT. Civ. J. reP. no. 36 (2008), available at http://www.manhattan-institute.org/pdf/cjr_11.pdf.

71. See fed. r. Civ. P. 23(c)(3)(B). By shifting from an “opt in” to an “opt out” rule, the advisory committee effectively created modern class action litigation. Because class members are included in such litigation unless they request exclusion, these types of cases are essentially lawyer-driven. Securities class action attorney Bill Lerach once boasted, “I have the greatest practice of law in the world. I have no clients.” See Neil Weinberg, Shakedown Street, forBes.Com, Feb. 11, 2008, http://www.forbes.com/2008/02/11/lerach-milberg-weiss-biz-cz_nw_0211lerach.html.

72. See Kamen, supra note 10.73. The Justice League of America first appeared in DC Comics in 1960. See

The Comic Book Database, http://comicbookdb.com/issue.php?ID=11725 (last visited Jan. 13, 2010). The fictional group starred for several seasons beginning in 1973 on a Saturday-morning television cartoon, Super Friends. See The Internet Movie Database, http://www.imdb.com/title/tt0069641/ (last visited Jan. 13, 2010).

74. See, e.g., Jonathan Rose, Medieval Attitudes Toward the Legal Profession: The Past as Prologue, 28 sTeTson l. rev. 345 (1998).

75. See Witt, supra note 30, at 246-52.76. See Belli, supra note 47.

77. See Witt, supra note 30, at 252-58.78. See Pound Civil Justice Institute Home Page, http://www.roscoepound.

org/about.aspx (last visited Jan. 13, 2010).79. 527 F.3d 627 (7th Cir. 2008), cert. granted, 129 S. Ct. 1579 (March 9,

2009) (No. 08-586).80. See Brief of Law and Finance Amici Curiae in Support of Respondent at 5

n.4, Jones v. Harris Associates, 527 F.3d 627 (7th Cir. 2008), cert. granted, 129 S. Ct. 1579 (Mar. 9, 2009) (No. 08-586).

81. Grisham’s books have often developed themes of small-scale crusading lawyers taking on big corporations. See, e.g., John Grisham, The rainmaKer (1995); Grisham, The rUnway JUry (1996). But see Grisham, The KinG of TorTs (2003). Kelly’s television shows, such as Ally McBeal, The Practice, and Boston Legal have often reinforced these themes.

82. See, e.g., Posting of Peter Lattman to WSJ Law Blog, http://blogs.wsj.com/law/2007/12/03/the-dickie-scruggs-case-a-qa/ (Dec. 3, 2007, 20:45 EST).

83. See Ashby Jones & Paulo Prada, Richard Scruggs Pleads Guilty, wall sT. J., Mar. 15, 2008.

84. John sTossel, Give me a BreaK: how i exPosed hUCKsTers, CheaTs, and sCam arTisTs and BeCame The sCoUrGe of The liBeral media 158 (2004).

85. See Center for Justice & Democracy Web Page, http://www.centerjd.org/about.php (last visited Jan. 13, 2010).

86. See Americans for Insurance Reform Web Page, http://www.insurance-reform.org/about/index.html (last visited Jan. 13, 2010).

87. See Center for the Study of Responsive Law Web Page, http://www.csrl.org/ (last visited Jan. 13, 2010).

88. See U.S. PIRG Web Page, http://www.uspirg.org/about-us (last visited Jan. 13, 2010).

89. See Public Citizen Web Page, http://www.citizen.org/about/ (last visited Jan. 13, 2010).

90. See Public Citizen Litigation Group Web Page, http://www.citizen.org/litigation/index.cfm (last visited Jan. 13, 2010).

91. See Public Citizen Health Research Group Web Page, http://www.citizen.org/hrg//drugs/index.cfm (last visited Jan. 13, 2010).

92. ralPh nader, Unsafe aT any sPeed (1965).93. See Bob Helt, Government Tests Prove the Corvair Does Not Have a Handling or Stability Problem, http://www.corvaircorsa.com/

handling01.html (last visited Jan. 13, 2010).94. PeTer w. hUBer, liaBiliTy: The leGal revolUTion and iTs ConseqUenCes

42 (1988).95. See Hrab, supra note 35, at 4.96. Peter Brimelow & Leslie Spencer, The Plaintiff Attorneys’ Great Honey Rush,

forBes, Oct 16, 1989. 97. Michael Kinsley coined the term “Saint Ralph” in reference to Nader in a

December 6, 1985, article in The New Republic.98. See Center for Responsive Politics, http://www.opensecrets.org/pfds/

pfd2003/N00000086_2003.pdf.99. See Civil Justice Foundation Web Page, http://civiljusticefoundation.org/

aboutus.html (last visited Jan. 13, 2010).100. See Laura Longhine, Display Cases, leGal aff., Nov.-Dec. 2005, available

at http://www.legalaffairs.org/issues/November-December-2005/scene_longhine_novdec05.msp.

101. See, e.g., Robert A. Levy, The Great Tobacco Robbery: Lawyers Grab Billions, Mar. 6, 1999, http://www.cato.org/dailys/03-06-99.html; text accompanying note 136.

102. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).103. See 28 U.S.C. §§ 1441, 1446 (2008) (defining removal jurisdiction).104. Plaintiffs’ home turf can be quite favorable. Plaintiffs’ lawyer Dickie

Scruggs once candidly admitted that there are “magic jurisdiction[s]” in which “the judiciary is elected with verdict money,” and he noted that “it’s almost impossible to get a fair trial if you’re a defendant in some of these places.” Richard Scruggs, Asbestos for Lunch, Prudential Securities Financial Research and Regulatory Conference (May 9, 2002) (on file with author).

105. Every year, the American Tort Reform Foundation (ATRF) publishes a study listing the nation’s worst jurisdictions for being a civil defendant—venues it calls “judicial hellholes”—such as Madison County, Illinois. ameriCan TorT reform foUndaTion, JUdiCial hellholes (2009-2010). Madison County has improved its legal climate in recent years. See id.

106. See Allen Adomite, Watch Out Delaware: We’re Chasing Them Out of Illinois (July 18, 2005), http://www.legalreforminthenews.com/Op-Ed/Op_Ed-ICJL-SimmonsCooper.html; Steve Korris, Asbestos Shift to


endnotes

Delaware Is Sign of Distinction for Madison County, madison-sT. Clair reC., July 7, 2005.

107. Telephone Interview, In-House Counsel of Defendant Industry (Mar. 31, 2008) (notes on file with author).

108. See Victor E. Schwartz, Judicial Nullification of Tort Reform: Ignoring History, Logic, and Fundamentals of Constitutional Law, 31 seTon hall. l. rev. 688 (2001).

109. Cf. 2008 Post-Election Partisan Composition of State Legislatures, http://www.ksefocus.com/pdf/2008Post-ElectionChart.pdf.

110. See CPSC Rel. 77-096 (Sept. 2, 1977) (banning lead-based paint).111. See Peter G. Angelos Web Page, http://www.angeloslaw.com/pga.htm (last

visited Jan. 13, 2010) (noting that Angelos “made history . . . when he became one of the first to move against the [paint] industry . . . . ” Recently, Angelos’s firm withdrew from participation in individual suits against paint manufacturers. See Posting of Jane Genova to Law and More, http://lawandmore.typepad.com/law_and_more/2009/03/another-lead-paint-war-over-this-one-endured-10-years.html (Mar. 13, 2009, 2:11 EST).

112. See Baltimore City Lead Poisoning Recovery Act of 2009, H.B. 1156, 2009 Sess. (Md. 2009); see also Daniel LeDuc & Michael E. Ruane, Orioles Owner Masters Political Clout, wash. PosT, Mar. 28, 1999, at C1.

113. See American Tort Reform Foundation, Private Consumer Protection Lawsuit Abuse (2006), available at http://www.atra.org/reports/consumers/consumer_protection.pdf.

114. See Press Release, Office of the Attorney General, Consumer “Private Right of Action”: What Consumers Need to Know (July 1, 2009), available at http://www.iowa.gov/government/ag/latest_news/releases/july_2009/private_right_of_action.html.

115. See S.S.B. 5531, 61st Legis., Gen. Sess. (Wash. 2009) (codified as amended Rev. Code Wash. 19.86).

116. See Tiger Joyce, “Defensive Efforts” Largely Successful but Litigation Industry Lobbying Will Remain Relentless, meTro. CorP. CoUns., Aug. 2009, available at http://www.metrocorpcounsel.com/pdf/2009/August/11.pdf.

117. See A. 8646, 230th Legis. Sess. (N.Y. 2009); cf. N.Y. Gen. Bus. L. § 352-c.118. See James R. Copland, Spitzer’s Sins in the Spotlight, naT’l rev. online, Mar.

11, 2008, http://www.manhattan-institute.org/html/miarticle.htm?id=5267.119. See Press Release, American Tort Reform Association, ATRA Awards Medals

for “Best” and “Worst” State Civil Justice Legislation in 2009 (Sept. 1, 2009), http://www.atra.org/newsroom/releases.php?id=8408.

120. See Scott, supra note 43.121. See A. 3428, 212th Legis., Reg. Sess. (N.J. 2008) (enacted Jan. 15, 2008);

S.B. 889, 51st Legis., 1st. Sess. (Okla. 2007) (enacted Apr. 25, 2007); H.B. 770, 48th Legis., Reg. Sess. (N.M. 2007) (enacted Mar. 15, 2007).

122. See, e.g., H.B. 2600, 86th Gen. Assem., Reg. Sess. (Ark. 2007); H.B. 1144, 66th Gen. Assem., 1st Reg. Sess. (Colo. 2007); H.B. 551, 149th Gen. Assem. (Ga. 2007); H.B. 631, 82nd Gen. Assem., 1st Sess. (Iowa 2007); H.B. 483, 85th Legis. Sess. (Minn. 2007); S.B. 1244, 93rd Gen. Assem., 2d Reg. Sess. (Mo. 2006); A.B. 4308, 230th Legis. Sess. (N.Y. 2007); S.B. 179, 2007 Gen. Assem. (N.C. 2007); S.B. 2126, 60th Legis. Assem. (N.D. 2007); H.B. 329, 190th Gen. Assem., Reg. Sess. (Pa. 2007); S.B. 82, 117th Gen. Assem., 1st Reg. Sess. (S.C. 2006); S.B. 1309, 80th Legis. (Tex. 2007).

123. H.B. 1798, 96th Gen. Assem., Reg. Sess. (Ill. 2007) (codified as amended 740 Ill. Comp. Stat. 180/2 (2008)).

124. See S.F. 538, 82nd Legis., 1st Sess. (Iowa 2007) (enacted May 9, 2007).125. See A. 1511, 212th Legis., Reg. Sess. (N.J. 2007).126. See S.B. 311, 75th Legis., Reg. Sess. (Ore. 2009) (enacted Apr. 15, 2009).127. See, e.g., S.B. 5815, 60th Legis., Reg. Sess. (Wash. 2007) (calling for

increase in maximum damages in consumer-protection lawsuits).128. See A.B. 793, Reg. Sess. (Calif. 2009) (vetoed Oct. 11, 2009: “as drafted,

this measure is far more expansive than the federal law and could pose unreasonable and unlimited liability for California employers”).

129. For a thorough account of the state tobacco litigation, see Walter Olson, The rUle of layyers: how The new liTiGaTion eliTe ThreaTens ameriCa’s rUle of law 25-72 (2003).

130. See id.131. See id.132. See Levy, supra note 101.133. See Jeffrey S. Nielsen & Jeffrey P. Yushchak, Report on Policies and Practices

of State Attorneys General in Initiating and Conducting Investigations and Litigation (2007), available at http://www.instituteforlegalreform.com/component/ilr_issues/29/item/AAG.html.

134. See McGraw v. American Tobacco Co., No. 94-C-1707 (W. Va. Cir. Ct. Nov. 29, 1995) (holding that a contingent-fee arrangement is an unlawful

appropriation of state funds); Phil Kabler, Legislative Audit Questions Attorney General’s Authority, CharlesTon GazeTTe, Jan. 8, 2002, at 5A.

135. Chris Dickerson, AG’s Practices Questioned by House Committee, W. Va. reC., Feb. 2, 2007.

136. See West Virginia Citizens Against Lawsuit Abuse, Special Report: Flaunting [sic] Laws You Are Charged to Protect—A Critical Look at Fourteen Years in the Office of Attorney General Darrell McGraw 6 (June 2007), available at

http://www.wvrecord.com/content/img/f196361/CALAreport.pdf; Lawyer Receives $3.85 Million; Attorney Was Only Briefly Involved in Tobacco Lawsuit, CharlesTon daily mail, June 27, 2002.

137. Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109 Stat. 737 (1995).

138. See id. at § 27(a)(3)(B)(iii)(I)(bb).139. See Editorial, Hevesi vs. the Holdouts, N.Y. SUn, July 26, 2004, available at

http://www.nysun.com/editorials/hevesi-vs-the-holdouts/78541/. Note that although Hevesi subsequently pleaded guilty to a felony relating to his conduct in public office, see Michael Cooper, Hevesi Pleads Guilty to a Felony and Resigns, N.Y. Times, Dec. 23, 2006, the allegations of wrongdoing leading to that guilty plea are unrelated to his handling of the MCI WorldCom litigation.

140. See New York State Retirement Fund Web Page, http://www.osc.state.ny.us/pension/index.htm (last visited Jan. 13, 2010).

141. See Editorial, supra note 39.142. See Editorial, Hevesi, Round II, N.Y. SUn, July 19, 2007, available at http://

www.nysun.com/editorials/hevesi-round-ii/58725/.143. See Laura E. Simmons & Ellen M. Ryan, Securities Class Action

Settlements: 2006 Review and Analysis 11 & fig. 10 (Cornerstone Research, 2006), available at http://securities.stanford.edu/Settlements/REVIEW_1995-2006/Settlements_Through_12_2006.pdf.

144. See Justice at Stake, http://www.justiceatstake.org/issues/state_court_issues/index.cfm (last visited Jan. 13, 2010).

145. See Brimelow & Spencer, supra note 96.146. See id.147. See Justice at Stake, http://www.justiceatstake.org/resources/facts_stats_

and_quotes/ (last visited Jan. 13, 2010).148. See, e.g., Press Release, Independent Expenditures Defined 2006

Washington Supreme Court Races, Justice at Stake (May 17,2007), available at http://www2.justiceatstake.org/contentViewer.asp?breadcrumb=7,55,978.

149. See Posting of Carter Wood to PointofLaw.com, http://www.pointoflaw.com/archives/2009/11/most-important.php (Nov. 2, 2009, 10:21 EST).

150. See National Institute on Money in State Politics, http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=PA&y=2009&f=J (last visited Jan. 13, 2010).

151. See National Institute on Money in State Politics, http://www.followthemoney.org/database/StateGlance/candidate.phtml?c=116295 (last visited Jan. 13, 2010). Interestingly, the Philadelphia Trial Lawyers Association hedged its bets and also gave $125,000 to winning candidate Melvin. See National Institute on Money in State Politics, http://www.followthemoney.org/database/StateGlance/candidate.phtml?c=116282 (last visited Jan. 13, 2010).

152. See Press Release, Michigan Democratic Party Highlights Cliff Taylor as Top Target in 2008, Michigan Democratic Party (May 29, 2008), available at

http://www.michigandems.com/newsroom.php?id=44.153. See Editorial, Despite His Agenda, Retain Chief Justice Clifford Taylor, deT.

free Press, Oct. 14, 2008.154. See Posting of Walter K. Olson to PointofLaw.com, http://www.pointoflaw.

com/archives/2008/11/election-result-2.php (Nov. 5, 2008, 2:55 EST).155. No.08-22, slip op. (U.S. June 8, 2009), available at http://www.

supremecourtus.gov/opinions/08pdf/08-22.pdf.156. See id. at 13 (Roberts, C. J., dissenting).157. See Michael DeBow et al., The Case for Partisan Judicial Elections

(Federalist Society 2003), available at http://www.fed-soc.org/publications/PubID.90/pub_detail.asp.

158. See U.S. Chamber of Commerce Institute for Legal Reform, Promoting “Merit” in Merit Selection: A Best Practices Guide to Commission-Based Judicial Selection (2009), available at http://www.instituteforlegalreform.com/images/stories/documents/pdf/research/meritselectionbooklet.pdf.

159. Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109 Stat. 737 (1995).160. See Doug Abrahms, Veto Override Makes High-Tech Firms Happy, wash.

Times, Dec. 23, 1995, at A13. 161. See, e.g., Marilyn F. Johnson et al., Do the Merits Matter More? The Impact of

the Private Securities Litigation Reform Act, 23 J.L. eCon. & orG. 627 (2002).



��

K STREET162. See Common Sense Product Liability Legal Reform Act of 1996, H.R. 956,

104th Cong. (1996) (vetoed May 2, 1996).163. See Pamela Becker, Congress and States Take Action on Tort Reform,

meChaniCal enGineerinG, Apr. 1, 1995.164. See, e.g., H.B. 668, 75th Legis., Gen. Sess. (1995) (codified as Tex. Bus. & Com.

Code art. 17.42-.50 (2008)) (deceptive trade practices); H.B. 971, 75th Legis., Gen. Sess. (1995) (codified as Tex. Rev. Civ. Stat. art. 4590i) (medical malpractice and expert witness qualifications); S.B. 25, 75th Legis., Gen. Sess. (1995) (codified as Tex. Civ. Prac. & Rem. Code art. 41) (punitive damages); S.B. 28, 75th Legis., Gen. Sess. (1995) (codified as Tex. Civ. Prac. & Rem. Code art. 33, 95) (joint and several liability and premises liability); S.B. 32, 75th Legis., Gen. Sess. (1995) (codified as Tex. Civ. Prac. & Rem. Code art. 15 ) (venue).

165. Cf. Help Efficient, Accessible, Low-cost, Timely Healthcare Act, H.R. 534, 109th Cong. (2005).

166. Cf. Fairness in Asbestos Injury Resolution Act, S. 3274, 109th Cong. (2005).167. S. 5, 109th Cong. (2005) (codified as 28 U.S.C. §§ 1332(d), 1453, 1711-

1715 (2006)).168. See Lilly Ledbetter Fair Pay Act of 2009, S. 181, 111th Cong. (2009) (enacted).169. See Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. (2009).170. See Liability for Aiding and Abetting Securities Violations Act of 2009, S.

1551, 111th Cong. (2009).171. See Carmelo Rodriguez Military Medical Liability Act of 2009, H.R. 1478,

111th Cong. (2009).172. Cf. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007),

superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2,123 Stat. 5 (2009).

173. See Posting of Carter Wood to PointofLaw.com, http://www.pointoflaw.com/archives/2008/08/lilly-ledbetter.php (Aug. 26, 2008 10:32 EDT).

174. See 550 U.S. at 628-29.175. Editorial, Injustice 5, Justice 4, N.Y. Times, May 31, 2007.176. See Stephanie Mencimer, Lilly Ledbetter: Obama’s Newest Ad Star, moTher

Jones, Sept. 23, 2008.177. See Pub. L. No. 111-2, § 5 (“This Act, and the amendments made by this

Act, take effect as if enacted on May 28, 2007 . . . .”).178. Obama Signs “Lilly Ledbetter Fair Pay Act”, USA Today, Jan. 29,

2009, available at http://content.usatoday.com/communities/theoval/post/2009/01/62099146/1.

179. Joint Appendix at 233, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (No. 05-1074), available at http://www.lawmemo.com/docs/us/ledbetter/appendix.pdf.

180. See id.181. Id. at 231-32.182. The Supreme Court first recognized the equitable tolling doctrine in Bailey

v. Glover, 88 U.S. (21 Wall.) 342, 348 (1874).183. See 550 U.S. at 639-40 & n.9 (“Ledbetter originally asserted an EPA claim,

but that claim was dismissed by the District Court and is not before us. If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.”).

184. See id. at 630-31 n.4 (“Ledbetter’s claims of sex discrimination turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated against her when she rejected his sexual advances during the early 1980’s, and did so again in the mid-1990’s when he falsified deficiency reports about her work. . . . Yet, by the time of trial, this supervisor had died and therefore could not testify. A timely charge might have permitted his evidence to be weighed contemporaneously.”).

185. See 42 U.S.C. § 2000e–5(e)(3)(A) (2008).186. See id.187. See fed. r. Civ. P. 8(a)(2).188. See fed. r. Civ. P. 26, 34.189. See, e.g., United States v. AT&T Co., 461 F. Supp. 1314, 1341 (D.D.C.

1978) (“If the purposes of the Rules, and of pretrial discovery generally are to be effectuated, actual discovery must be expected to be somewhat of a ‘fishing expedition’ . . . .”).

190. 550 U.S. 544 (2007).191. See id. at 553.192. 129 S. Ct. 1937 (2009).193. See id. at 1951.194. See Larry Rulison, Lawyers, Malpractice and Money, PhiladelPhia BUs. J.,

June 11, 2004, available at http://philadelphia.bizjournals.com/philadelphia/stories/2004/06/14/story1.html.

195. S. 1504, 111th Cong. (2009).196. See Michael C. Dorf, Should Congress Change the Standard for Dismissing

a Federal Lawsuit?, findlaw.Com, July 29, 2009, http://writ.news.findlaw.com/dorf/20090729.html.

197. See Pub. L. No. 104-67, 109 Stat. 737 (1995).198. See Jonathan D. Glater, High-Profile Trial Lawyer Agrees to Guilty Plea, N.Y.

Times, Mar. 21, 2008.199. See Stoneridge Investment Partners v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008).200. Id. at 163-64.201. See, e.g., Donald C. Langevoort, Capping Damages for Open-Market

Securities Fraud, 38 ariz. l. rev. 639, 646–57 (1996) (“[B]uy and hold strategies make it somewhat more likely that [small, diversified investors] will be non-trading shareholders of an issuer defendant . . . than members of the plaintiff class who stand to gain from the settlement or judgment.”).

202. See, e.g., Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 sTan. L. rev. 497 (1991) (concluding that settlement value in securities fraud cases is not a function of merit).

203. See, e.g., John C. Coffee, Jr., Memo to Congress: Reform and Its Perils, N.Y.L.J., Nov. 15, 2007, at 5 (asserting that transaction costs in securities litigation consume approximately 50 percent of recoveries).

204. S. 1551, 111th Cong. (2009).205. See id. at § 2.206. 31 U.S.C. § 3729–3733 (2008).207. See False Claims Act Amendments of 1986, Pub. L. 99-562, 100 Stat. 3153

(1986).208. See Bill Myers, Blowing Whistle Pays Off Big for Fortunate Few, wash.

examiner, May 28, 2009.209. See 31 U.S.C. § 3730 (d)(2).210. See Myers, supra note 208.211. 128 S. Ct. 2123 (2008), superseded by statute, Fraud Enforcement Recovery

Act of 2009, Pub. L. 111-21, 123 Stat. 1617 (2009).212. Pub. L. 111-21, 123 Stat. 1617.213. See id. at §§ 4(b)(1)(B), 4(b)(2)(A)(ii).214. See Center for Responsive Politics, http://www.opensecrets.org/politicians/

summary.php?type=C&cid=N00009918&newMem=N&cycle=2010 (last visited Jan. 13, 2010).

215. See id. at http://www.opensecrets.org/politicians/contrib.php?cycle=2010&cid=N00009918&type=C&mem= (last visited Jan. 13, 2010).

216. See Walter Olson, Inside the Health Care Bill, forBes.Com, July 22, 2009, http://www.forbes.com/2009/07/22/medicare-republicans-reform-bill-opinions-contributors-walter-olson.html.

217. See Center for Responsive Politics, http://www.opensecrets.org/politicians/summary.php?cid=N00006023&cycle=2010 (last visited Jan. 13, 2010).

218. H.R. 1409, 111th Cong. (2009).219. See id. at § 3.220. See, e.g., Lynn Langton & Thomas H. Cohen, Civil Bench and Jury Trials

in State Courts, 2005 8 (Bureau of Justice Statistics, 2008) (finding in jury trials an average of 26 months from filing to disposition).

221. See Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution System Is Reshaping Our Legal System, 108 Penn sT. l. rev. 165, 167 n.11 (2003).

222. See Interim Report on Creditor Claims in Arbitration and in Court, Searle Center on Law, Regulation, and Economic Growth at Northwestern Law 1 (2009), available at http://www.law.northwestern.edu/searlecenter/uploads/Creditor%20Claims%20Interim%20Report%2011%2019%2009%20FINAL2.pdf.

223. See id. at 27.224. See Bill McInturff et al., Key Findings from a National Survey of Likely Voters 7

(2008), http://www.instituteforlegalreform.com/component/ilr_issues/29/item/ADR.html (follow “View the survey results (PDF)” hyperlink) (discussing 2007 survey of 800 registered voters).

225. See id. at 11.226. See Sam Stein, Franken Gets His First Amendment Passed by Roll Call Vote,

hUffinGTon P., Oct. 7, 2009, http://www.huffingtonpost.com/2009/10/07/franken-gets-first-amendm_n_312399.html.

227. See S. Amdt. 2588, 111th Sess. (2009).228. See 155 Cong. Rec. S10028 (daily ed. Oct. 1, 2009) (statement of Sen.

Franken); see also Posting of Ted Frank to Overlawyered.com, http://overlawyered.com/2007/12/halliburton-gang-rape-and-fear-of-arbitration-the-jamie-leigh-jones-case/ (Dec. 12, 2007).

229. See Jones v. Halliburton Co. No. 08 20380, 2009 U.S. App. LEXIS 20543,

www.TrialLawyersInc.com�0

at *19-20 (5th Cir. Sept. 15, 2009), available at http://www.ca5.uscourts.gov/opinions/pub/08/08-20380-CV0.wpd.pdf.

230. See 155 Cong. Rec. S10028.231. See id.232. See Alex Leo, Jon Stewart Takes on 30 Republicans Who Voted Against Franken

Rape Amendment, hUffinGTon P., Oct. 15, 2009, http://www.huffingtonpost.com/2009/10/15/jon-stewart-takes-on-30-r_n_321985.html.

233. See Manu Raju, Dems Jam GOP with Al Franken Vote, PoliTiCo, Nov. 12, 2009, available at http://www.politico.com/news/stories/1109/29439.html.

234. See S. Amdt. 2588, 111th Sess. (2009).235. See Pub. L. No. 111-118, § 8116 (2009).236. See H.R. 1237, 111th Cong. (2009); S. 512, 111th Cong. (2009).237. See H.R. 1728, 111th Cong. (2009).238. See H.R. 1214, 111th Cong. (2009).239. See S. 585, 111th Cong. (2009).240. See H.R. 991, 111th Cong. (2009). As of this writing, the consumer-

arbitration market is in serious jeopardy. In July 2009, Minnesota attorney general Lori Swanson sued the National Arbitration Forum, alleging deceptive trade practices. To settle the charges, the National Arbitration Forum, the largest provider of these services, agreed to stop processing new consumer-arbitration claims. The American Arbitration Association announced its own moratorium on hearing most consumer-debt disputes.

241. See H.R. 1020, 111th Cong. (2009); S. 931, 111th Cong. (2009).242. See Consumer Financial Protection Agency Act, H.R. 3126, 111th Cong. (2009).243. See Right to Clean Vehicles Act, H.R. 609, 111th Cong. (2009).244. See Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).245. Id. at 1005.246. See id.247. See id.248. See Medical Device Amendments of 1976, 21 U.S.C. § 360k(a) (2008).249. See 128 S. Ct. at 1008.250. H.R. 1346, 111th Cong. (2009); S. 540, 111th Cong. (2009).251. See Notice of Class Action and Proposed Settlement, In re Mattel, Inc., Toy

Lead Paint Products Liability Litigation, MDL No. 1897 (C.D. Cal., Oct. 23, 2009), available at https://www.mattelsettlement.com/Prod/Content/PDF/exC.pdf; John Kell, Mattel Settles Suit Over Lead in China-Made Toy, wall sT. J., Oct. 14, 2009; Louise Story, Lead Paint Prompts Mattel to Recall 967,000 Toys, N.Y. Times, Aug. 2, 2007.

252. See Stipulation of Class Action Settlement at 35, In re Mattel, Inc., Toy Lead Paint Products Liability Litigation, MDL No. 1897 (C.D. Cal., Oct. 23, 2009), available at https://www.mattelsettlement.com/Prod/Content/PDF/mattelstip.pdf.

253. The ratio of attorneys’ fees to actual settlement value depends on the responses of class members. Mattel’s liability to claimants is $10.875 million or less from certain claimants; plus a sticker-price voucher for each toy or valid proof of purchase returned; plus no more than $10 to each responding individual who had already submitted a recalled toy for a voucher. Given the number of toys affected (about 967,000), the relatively modest price of most of the eligible toys (see Lead Paint Toy Settlement, List of Recalled Toys, In re Mattel, Inc., Toy Lead Paint Products Liability Litigation, MDL No. 1897 (C.D. Cal., Oct. 23, 2009), available at https://www.mattelsettlement.com/Prod/Content/PDF/Catalog-ALL_TOYS.pdf), and the probability that a high percentage of eligible class members will not file for recovery, the lawyers’ take seems likely to be an inordinately high proportion of the payments made to the class.

254. Consumer Product Safety Improvement Act of 2008, Pub. L. 110-314, 122 Stat. 3016 (2008).

255. See Walter Olson, A Destructive Toy Story Made in Washington, wall sT. J., Sept. 13, 2009.

256. See Center for Responsive Politics, supra note 11, http://www.opensecrets.org/politicians/contrib.php?cycle=Career&cid=N00001861&type=C (last visited Jan. 13, 2010).

257. See Posting of David Ingram to The BLT, http://legaltimes.typepad.com/blt/2009/12/senate-lawyer-chosen-to-lead-highway-safety-agency.html (Dec. 7, 2009, 13:05 EST).

258. See Anne M. Northup, There Is No Joy in Toyland, wall sT. J., Dec. 24, 2009.259. See Pub. L. 110-314, § 212.260. See id. at § 218.261. See Steven R. Strahler, Asbestos and the Legal Black Hole, Crain’s ChiCaGo

BUs., Sept. 28, 2009.262. See Northup, supra note 258.263. See id.264. See Timothy P. Carney, Specter’s Voting Record, wash. Times, Nov. 11, 2004.

265. See S. 437, 111th Cong. (2009).266. See BlaCK’s law diCTionary 231 (6th ed. 1994).267. See, e.g., Silverton v. Commissioner, 36 T.C.M. (CCH) 817 (1977), aff ’d, 647

F.2d 172 (9th Cir. 1981).268. See Priv. Ltr. Rul. 94-32-002 (Mar. 30, 1994) (“[P]ayment by one taxpayer of

the obligation of another taxpayer is not considered an ‘ordinary and necessary’ expense for purposes of section 162(a).”).

269. Victor E. Schwartz & Christopher E. Appel, Federal Government Bailout for Trial Lawyers, Wash. Leg. Found. Leg. Opinion Ltr. 1 (May 22, 2009).

270. See Chris Rizo, Lobbyist: AAJ Looking To Quietly Pass Plaintiff Lawyer Tax Break, leG. newsline, July 29, 2009, available at http://www.legalnewsline.com/spotlight/222204-lobbyist-aaj-looking-to-quietly-pass-plaintiff-lawyer-tax-break (quoting Linda Lipsen, senior vice president of public affairs, American Association for Justice).

271. See Posting of Carter Wood to PointofLaw.com, http://www.pointoflaw.com/archives/2008/06/tax-break-for-trial-lawyers-mo.php (June 7, 2008, 15:15 EDT).

272. In 1958, Roscoe Pound, see supra page 9, worried aloud that those pushing for expansive strict product liability were “not looking squarely at all the facts” and that such a program would have “consequences beyond the law of torts.” rosCoe PoUnd, The ideal elemenT in law 340 (1958).

273. miChael PorTer, The ComPeTiTive advanTaGe of naTions 525 (1990).274. Mark Tapscott, Dean Says Obamacare Authors Don’t Want to Challenge Trial

Lawyers, wash. examiner, Aug. 26, 2009.275. Letter from Anthony Tarricone, president, American Association for

Justice, http://images.magnetmail.net/images/clients/ATLA/attach/SENATEPASSESHISTORICHEALTHCAREREFORM.pdf (last visited Jan. 13, 2010).

276. See Affordable Health Care for America Act, H.R. 3962, 111th Cong. § 2351 (2009); see also James R. Copland, Tort-Bar Treat, N.Y. PosT, Nov. 3, 2009.

277. See id. at § 257; see also Chris Rizo, House Health Care Bill Expands State AGs’ Powers, leG. newsline, Nov. 24, 2009, available at http://www.legalnewsline.com/news/224232-house-health-care-bill-expands-state-ags-powers.

278. See Stephen Labaton, Asbestos Bill Is Sidelined by the Senate, N.Y. Times, Feb. 15, 2006.

279. See 14 U.S.C. §§ 441a(a)(1), 441a(c) (2008).280. See H.B. 1603, 52nd Legis., 1st Reg. Sess. (Okla. 2009) (enacted May 29, 2009).281. S. 5, 109th Cong. (2005) (codified as 28 U.S.C. §§ 1332(d), 1453, 1711-1715

(2006)).282. See U.S. Senate Roll Call Votes 109th Congress, 1st Session, http://www.senate.

gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=1&vote=00009 (last visited Jan. 13, 2010). Sens. Hillary Clinton (D-N.Y.) and Joe Biden (D-Del.) both opposed CAFA; Sen. Chris Dodd (D-Conn.), as well as Sen. Obama (D-Ill.), did vote for the bill. Dodd was not generally considered a “major” presidential aspirant.

283. See President Barack Obama, Address to a Joint Session of Congress on Health Care (Sept. 9, 2009), available at http://blogs.wsj.com/washwire/2009/09/09/prepared-text-of-obamas-speech-on-health-care/.

GRAPHS

Page 2: “Tort Litigation,” see Towers Perrin (TillinGhasT), U.s. TorT CosT and Cross-Border PersPeCTives: 2005 UPdaTe 4 tab. 2 (2005). “Since 1950,” see Towers Perrin, supra note 1, at 13 app. 1A.

Page 3: See Towers Perrin, supra note 1, at 13, app. 1A.Page 7: “The Trial Lawyer PAC,” see Center for Responsive Politics, http://www.

opensecrets.org/industries/contrib.php?ind=K01&cycle=2008 (and other cycles) (last visited Jan. 13, 2010). “Since 1990,” see id. at http://www.opensecrets.org/industries/indus.php?cycle=2008&ind=K01 (last visited Jan. 13, 2010).

Page 8: “Harry Reid,” see id. at http://www.opensecrets.org/politicians/summary.php?type=C&cid=N00009922&newMem=N&cycle=2010 (last visited Jan. 13, 2010). “Dick Durbin,” see id. at http://www.opensecrets.org/politicians/summary.php?type=C&cid=N00004981&newMem=N&cycle=2010 (last visited Jan. 13, 2010).

Page 12: See National Institute on Money in State Politics, http://www.followthemoney.org/database/IndustryTotals.phtml?f=0&s=0&b%5B%5D=K1000 (last visited Jan. 13, 2010).

Page 15: See Justice at Stake, http://www.justiceatstake.org/media/cms/JAS_20002008CourtCampaignExpenditur_63951A4654869.pdf (last visited Jan. 13, 2010).

Page 19: See Ellen M. Ryan & Laura E. Simmons, Securities Class Action Settlements: 2008 Review and Analysis, Cornerstone Research 1 fig. 1 (2009), available at http://securities.stanford.edu/Settlements/REVIEW_1995-2008/Settlements_Through_12_2008.pdf.

endnotes

Manhattan institute Center for legal Policy James R. Copland, Director

Marie Gryphon, Senior FellowPeter W. Huber, Senior FellowWalter K. Olson, Senior Fellow

Richard A. Epstein, Visiting Scholarwww.manhattan-institute.org/clp

(212) 599-7000

other research organizationsHeritage Foundation

Hans A. von Spakovsky, Senior Legal Fellowwww.heritage.org(202) 675-1761

Pacific Research InstituteLawrence J. McQuillan, Director, Business and Economic Studies

www.pacificresearch.org(415) 989-0833

RAND Institute for Civil JusticeJames N. Dertouzos, Director

www.rand.org/icj(310) 451-6979

Searle Center on Law, Legislation, and Economic Growth,Northwestern University School of Law

Henry N. Butler, Executive Directorwww.law.northwestern.edu/searlecenter

(312) 503-1811

legal and legislative organizationsAmerican Legislative Exchange Council

Amy Kjose, Director, Civil Justice Task Forcewww.alec.org

(202) 466-3800

Common GoodPhillip K. Howard, Founder and Chairman

cgood.org(212) 576-2700

Federalist Society for Law and Public Policy Studies Leonard Leo, Executive Vice President

www.fed-soc.org(202) 822-8138

Lawyers for Civil Justice

Lewis F. Collins, Jr., Presidentwww.lfcj.com

(202) 429-0045

Washington Legal FoundationDaniel J. Popeo, Chairman and General Counsel

www.wlf.org(202) 588-0302

Business organizationsAmerican Justice Partnership

Dan Pero, Presidentwww.americanjusticepartnership.org

(517) 371-5256

American Tort Reform Association Sherman Joyce, President

www.atra.org(202) 682-1163

Institute for Legal Reform Lisa A. Rickard, President

www.instituteforlegalreform.org(202) 463-5724

other experts

John H. Beisner, Skadden, Arps, Slate, Meagher & Flom LLPClass Actions, Mass Torts, Insurance

(202) 371-7410

Lester Brickman, Benjamin N. Cardozo School of LawAsbestos, Legal Ethics, Contingent Fees

(212) 790-0327

Ted Frank, Center for Class Action FairnessClass Actions, Products Liability, Medical Malpractice

(703) 203-3848

James A. Henderson Jr., Cornell Law SchoolTorts, Products Liability, Insurance

(607) 255-2303

Daniel P. Kessler, Stanford Graduate School of BusinessEmpirical Law and Economics, Medical Malpractice

(650) 723-4492

Michael I. Krauss, George Mason University School of LawTorts, Legal Ethics, Products Liability

(703) 993-8024

Michael A. Perino, St. John’s University School of LawSecurities Law

(718) 990-1928

George L. Priest, Yale Law School Torts, Class Actions, Products Liability

(203) 432-1630

Paul H. Rubin, Emory UniversityLaw and Economics

(404) 727-6365

Victor E. Schwartz, Shook, Hardy & Bacon LLPTorts, Federal and State Legislation

(202) 662-4886

Visit the Manhattan Institute’s legal web magazine PointOfLaw.com and Walter Olson’s Overlawyered.com for regular commentary and discussions on legal reform.

other resources

M IM A N H A T T A N I N S T I T U T E F O R P O L I C Y R E S E A R C H

52 Vanderbilt Avenue l New York, NY 10017 l www.manhattan-institute.org

Project DirectorJames R. Copland

Director, Center for Legal Policy, Manhattan Institute

Executive EditorBen Gerson

Editorial Director, Manhattan Institute

Managing EditorMatthew Hennessey

Managing Editor, Manhattan Institute

Production DesignerElaine Ren

Graphic Designer, Manhattan Institute

The Manhattan Institute’s mission is to develop and disseminate new ideas that foster greater economic choice and individual responsibility.

The Manhattan Institute is a 501(c)(3) nonprofit organization. Contributions are tax-deductible to the fullest extent of the law. EIN #13-2912529

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