Election 2008: How Will The Presidential And Congressional Elections Impact Regulation And Litigation In The United States?

by Jesse Greenspan
Jan 01, 2008

Though the first presidential primaries are just days away, none of the candidates have talked much about their plans regarding regulation and litigation. But when they did mention the subject, Republicans generally spoke out in favor of tort reform, while Democrats implied that civil litigation is needed to right injustices.

Nearly all of the presidential candidates have law degrees, so they likely have opinions on the matter. They have stayed largely silent because the issue does not currently resonate with voters, said Michael A. Pope, a partner at McDermott Will & Emery LLP. “I don't see it being an issue in the campaign for president hardly at all,” Pope said.

Roxanne Conlin, co-chair of John Edwards' Iowa campaign, said that “For most people, it's so far down the list of things they care about.” Conlin heads her own plaintiffs' firm, Roxanne Conlin & Associates PC.

“It's clearly something that corporations care about, but it's generally not something that people care about until something happens to them or someone they love,” she said.

Robert Alt, deputy director of the Center for Legal and Judicial Studies at the conservative think tank the Heritage Foundation, guessed that tort reform would only become an issue if there was some sort of “tort outrage,” such as the McDonald's coffee case.

“This is something that would be much more media-driven than candidate-driven,” he said.

Conservative commentators have generally pointed to Edwards as the candidate most opposed to tort reform — because of his past history as a plaintiffs' attorney and because of comments he made during the 2004 presidential election.

But Hillary Clinton and Barack Obama are also not expected to challenge current civil litigation practices, according to Darren McKinney, the director of communications for the American Tort Reform Association.

“Sadly enough, our primary system plays to the lunatic fringe at either end of the political spectrum,” McKinney said. “None of us are particularly worried or appeased by what is said by these naturally schizophrenic candidates in a primary campaign. Now, the general election, that's another story.”

“There will be tougher questions and they'll have to have refined policy answers,” he said.

On the regulatory side, Democratic administrations tend to be more active than Republican ones. The Bush administration in particular has been criticized by some for not bringing more enforcement actions, including civil rights actions.

“Corporations don't want to be sued,” Conlin said. “They want immunity. They want to be able to do anything they want.”

Too many government agencies are staffed with people from the very industries they are supposedly trying to police, she said.

“The FDA has tried to establish as a matter of law that if a drug is approved by them – and, of course, they do no testing, they rely on corporations for testing – then there cannot be a state tort suit or product liability suit brought by those injured by the drug,” Conlin said. Alt countered by saying that, although Republicans tend to be proponents of laissez-faire, they really just have different priorities. The Bush Justice Department, for example, has focused on cracking down on child pornography, he said.

“The U.S. government is referred to as the largest law firm in the world, but it still has limited resources,” Alt added.

The congressional elections are another story. During their time in power in 2007, Democrats focused on such things as raising the minimum wage and improving vehicle efficiency standards.

This summer, some Democrats introduced a bill that would ban mandatory arbitration agreements for employment disputes. They have not, however, tried to limit the overall number or type of cases being filed.

“Generally speaking, tort reform will probably not go forward if there's a Democratic Congress,” Pope said.

McKinney said, “I don't know what the congressional makeup is going to be, but there's at least a decent chance that it will be a divided government.”

As a result, much lobbying is done at the state level, where tort reform advocates have pushed for caps on punitive damages in medical malpractice and other cases.

“The state legislatures have been taking up the tort reform issue,” Alt said. “And that's where the majority of tort cases are filed in the first place.”

During President Bush's seven years in office, he has often talked about the dangers of “frivolous” lawsuits.

Over that time, Congress tried to restrict medical malpractice damages, product liability damages and attorneys' fees, and to impose sanctions for what lawmakers called frivolous pleadings.

But the tort reform measures were largely shot down, even though Congress was controlled by Republicans for most of those years.

The Class Action Fairness Act passed in 2005. While not technically tort reform, the law forced most class-action plaintiffs to file their cases in federal court rather than state court.

Two other tort reform measures also passed that year. One protected firearms manufacturers from being sued for crimes committed with their products. The other protected rental car companies from being sued for accidents involving their cars.

It is doubtful that any of those bills had a noticeable effect on the total number of cases being filed, although a recent study found that U.S. tort costs decreased by 5.5% in 2006, marking the first downward trend since 1997.

The study, conducted by the Tillinghast Insurance Consulting practice of Towers Perrin, also predicted that tort costs would begin increasing again in 2007.