REPUBLICAN CONTROL of Congress and the presidency creates an opportunity to enact useful reforms to America's civil justice system. Tort reform should not be a partisan issue, yet the dependence of many Democrats on trial-lawyer money makes their party reflexively hostile to what should be common-sense changes to a broken system. The danger now is that Republicans will focus on creating advantages for specific industries that favor the GOP with campaign dollars rather than on the broader problems with the civil justice system. Tort-reform skirmishes about vaccines and lawsuits related to terrorist attacks broke out recently in the homeland security and terrorism reform bills, and the House has passed a bill putting liability caps on medical malpractice suits as well. These may be important issues, but it would be a shame if the political energy available for making American justice work were directed away from sensible, structural reform.
Congress's first priority in the world of civil lawsuits should be to change the rules of class actions. When working properly, class actions are an important component of America's legal system -- one that allows efficient court consideration of numerous identical claims against the same defendant. In practice, no component of the legal system is more prone to abuse. For unlike normal lawyers, who are retained by people who actually feel wronged, class counsel -- having alleged a product deficiency that caused some small monetary damage to some discernible group of people -- largely appoint themselves. The "clients" may not even be dissatisfied with the goods or services they bought, but unless they opt out of a class of whose existence they may be unaware, they become plaintiffs anyway. Class actions permit almost infinite venue shopping; national class actions can be filed just about anywhere and are disproportionately brought in a handful of state courts whose judges get elected with lawyers' money. These judges effectively become regulators of products and services produced elsewhere and sold nationally. And when the cases are settled, the "clients" get token payments, while the lawyers get enormous fees. This is not justice. It is an extortion racket that only Congress can fix.
The House passed a bill in the 107th Congress, which then stalled in the Senate, that would make it easier for defendants to move class actions from state to federal courts and subject them to more reasonable federal rules. Passing this bill would be an important beginning.
The new Congress also must tackle the problem of asbestos litigation. In 1999 Justice David Souter wrote that "the elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation." Yet as Congress has continued to ignore the problem, it has only grown more dire. As a recent Rand report documents, asbestos claims continue to rise -- 600,000 and counting -- even though the overwhelming preponderance of claimants have not been made sick by asbestos, and many of the 6,000 corporate defendants never made asbestos. More than half of the $54 billion already spent on asbestos litigation has been eaten up by "transaction costs." The result is that numerous companies have gone bankrupt, and money that should be used to compensate sick people is going to lawyers for people who are still asymptomatic and may never grow ill. Congress should put a stop to this and make sure that those whom asbestos has harmed are taken care of.