Tort reformers wary of Obama presidency

By Chris Rizo | Nov 4, 2008



Efforts to restore fairness and balance to the nation's courts could take a step backward if Democrat Barack Obama is elected president today, tort reform advocates said Tuesday.

An Obama win coupled with Democrats' likely gains in Congress would spell disaster for legal reform efforts including pushes for damage award caps, experts said.

James Copland, director of the Manhattan Institute's Center for Legal Policy, said tort reform activists have already been placed in a defensive posture.

Obama has signaled his support for expansions of potential liability and limits on arbitration provisions, Copland said, adding that he expects many Democratic lawmakers to undo "positive developments" in the law, including court rulings upholding federal preemption.

"It is very unlikely that such expansions would not take place in the next Congress," Copland said. "Ultimately, you're going to be left with the threat of a Senate filibuster to block substantial threats of new causes of actions."

Copland said it is unlikely that liability expansions would be a White House priority under an Obama administration, but proposals to do so would percolate from legislative committees.

"I don't think Obama would be at the forefront pushing all of this stuff, but the point is that without the threat of a (presidential) veto you're going to see a lot more of this legislation getting through," Copland said.

Democrats currently hold a 51-49 majority in the U.S. Senate, counting support from independents Joe Lieberman of Connecticut and Bernard Sanders of Vermont. Lieberman, however, has endorsed Republican presidential nominee John McCain.

Diann Rogers, president of the Central Valley Citizens Against Lawsuit Abuse, said with Democrats already in control of both houses and possibly the White House next year -- if national polls hold true -- the influence of trial attorneys could grow significantly since they typically back Democratic candidates.

"There won't be any checks and balances and that is critical for the system," she said in an interview from Sacramento.

In Illinois, a leading legal reform advocate said an Obama victory would bring with it down-ballot wins for "trial lawyer-friendly Democrats" in Washington and in state capitols around the nation.

"That is going to make our task for future reforms more difficult," said Ed Murnane, president of the Illinois Civil Justice League.

As an Illinois state senator, Obama wasn't "too bad" on legal reform issues, Murnane said, adding that on class action reform Obama was "sympathetic and supportive" of reformers' efforts. But such might not hold true with his vice presidential nominee, Joe Biden, in his ear.

Biden, he said, has a clear record of siding with the nation's plaintiffs' bar. As a member of the Senate Judiciary Committee, Biden voted against legislation that would have created a $140 billion trust fund to compensate asbestos victims and keep lawsuits out of court.

"I don't think Obama as president would make a roll back of reforms a major agenda, but if a President Obama is listening closely to a Vice President Biden I think that Biden's close ties should be of concern to everyone on our side of the issue," said Murnane, who serves on the board of directors of the American Tort Reform Association.

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