Eroding Americans’ Last Defense: The Civil Justice System

Our lawless President and his Congressional cohorts are pushing legislation that would significantly erode Americans’ last defense against corporate crimes and frauds; the civil justice system. With a bill scheduled to reach the Senate floor next week, our freedom to redress harms in courts of law is in danger. S. 5, a proxy for last year’s misnamed “Class Action Fairness Act,” emerged from the Senate Judiciary Committee this week with little discussion and no public hearings. No public hearings! It will be rushed to the Senate floor next week, as befits this increasingly dictatorial Congress.

Our lawless President and his Congressional cohorts are pushing legislation that would significantly erode Americans’ last defense against corporate crimes and frauds; the civil justice system. With a bill scheduled to reach the Senate floor next week, our freedom to redress harms in courts of law is in danger. S. 5, a proxy for last year’s misnamed “Class Action Fairness Act,” emerged from the Senate Judiciary Committee this week with little discussion and no public hearings. No public hearings! It will be rushed to the Senate floor next week, as befits this increasingly dictatorial Congress.

While the class action remedy has successfully provided many of those harmed by negligent actions an efficient means of redress for wrongful injuries and violations of civil and consumer rights since the 1960s, S. 5 would send most class actions to procedural purgatory. It would shift class action suits — where any member of the class is from a different state than the defendant — from state court to federal court. This coup encompasses class actions of any significance, according to respected legal scholar and Harvard professor Arthur Miller.

Before enacting such legislation, the burden of proof is on the Congress to demonstrate that state judges and jurors are unwilling, incompetent or unable to dispense justice based on the common law and state statutes. If proponents of this legislation were to talk to their home state judges, they would not support this federal usurpation of state judicial responsibilities. S. 5’s backers also ignore the dire warnings of federal judges who are already presiding over congested courts and who admit that this bill will result in most cases being summarily dismissed on procedural grounds as being “unmanageable.”

On what basis could such a fundamental right be taken from us?

In his State of the Union address this week, President Bush said that, “our economy is held back by irresponsible class-actions and frivolous asbestos claims.” The President is ignorant. He provides no data for his repeated corporate bellowing.

There simply is no causal link between taking judicial rights away from Americans and making our economy stronger or more competitive. Just the opposite. Justice enhances economic development and worker productivity. Many countries overseas do not have these judicial rights and their GDP per capita shows it. The “tort costs” that proponents of judicial limitations often cite are actually costs of the entire tort-insurance system in America. This includes costs that have absolutely nothing to do with lawsuits.

This bill will take away crucial consumer safeguards and allow businesses to avoid corporate responsibility to innocent workers, consumers, patients and community residents. But that’s the point: this bill is not designed to make America more competitive, its manifest purpose is to erase the accountability that limits deadly harms from the likes of Vioxx, flammable children’s pajamas, or asbestos.

The President’s callous remark about “frivolous asbestos claims” in his speech speaks volumes for the monetized backers of this bill. Those who struggle to breathe because of exposure to asbestos have suffered real and lasting harm, if they survived.

When it comes to protecting his business cronies, notice how President Bush dramatically deviates from his usual “freedom for all” rhetoric. He is essentially telling the American people that there is a finite amount of freedom and liberty left in America; and he’s taking away our individual freedoms and replacing them with the corporate license to avoid responsibility and repeat their reckless ways into the future.

Make no mistake, the Bush administration is asking that we give up our freedom to fully use the courts. And while the Republican Party routinely calls for personal responsibility on the part of the people, it seems to have little interest in corporate responsibility. Corporate interests have wrested control of the legislature from an under-engaged populace. This bill is an archetype of Washington’s unchecked pay-to-play politics.

The civil justice system is a noble pillar of our democracy. It needs to be improved, not weakened to favor further criminality, negligence and irresponsibility. The media reporting of hazardous drugs, defective medical, automotive and other equipment, unsafe medical and hospital practices, toxics in the environment and workplace, the fleecing of investors, and the manipulation of energy and electricity markets should serve as a reminder that prevention of human casualties, suffering and economic loss should be the top concern of Congress, not the incremental closing of the courtroom doors to favor corporate donors.

For years, when constituents could not count on their elected officials to protect their interests through protective legislation, the courts have offered a last refuge for justice. Members of Congress should do the right thing and reject this weakening of contemporary civil justice freedoms accorded wrongfully injured and defrauded men, women and children. You should demand no less when you contact your Senators before next week’s vote.

Call (202) 224-3121 to speak with your Senator’s office.