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