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Opinion How Republicans learned to love frivolous lawsuits

Former president Donald Trump speaks at the Conservative Political Action Conference in Orlando on Feb. 28, 2021. (Octavio Jones/Reuters)
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This is the story of how Republicans learned to love frivolous lawsuits.

For decades, GOP leaders railed against “junk lawsuits” and “frivolous lawsuits” and championed the need for “tort reform” to overcome the sinister powers of “the trial lawyers.”

In 1986, President Ronald Reagan told the American Tort Reform Association that an “expansion of tort liability penalizes virtually every American — manufacturers, doctors, small-business men, government at all levels, nonprofit organizations, entrepreneurs, and perhaps most severely, the consumer.”

In 2004, President George W. Bush lamented that “somehow the trial lawyers always hold the winning ticket,” and he claimed a “culture of lawsuits” had taken hold. “There’s just too many junk and frivolous lawsuits.”

Then came Donald Trump, who loved suing and (judging from the number of cases filed against him) being sued. Among the many abandonments of conservative principles Trump brought about in the Republican Party (including, most recently, embracing violence as “legitimate political discourse”) has been a newfound appreciation for junk lawsuits.

At least 11 states, most of them GOP-controlled, have seen the introduction of bills by anti-vaccine lawmakers that would give employees the right to sue employers who require coronavirus vaccines. An op-ed last month in the Wall Street Journal called this “Conservatives for Abusive Lawsuits.”

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It isn’t just vaccine litigation Republicans are promoting.

Republicans across the country are introducing gag laws to ban the teaching of certain subjects involving race, and 15 such bills include a “private right of action,” according to the free-speech group PEN America. This would give students, parents, teachers or ordinary citizens standing to sue schools and recover damages in court over lessons they find objectionable. A version proposed by Florida’s Republican governor, Ron DeSantis, would even allow parents to collect attorneys’ fees if they win in court.

Republican legislators have introduced “stop social media censorship” bills in roughly 20 states, and some of these include private rights of action allowing users to sue social media companies that delete, censor or even use “an algorithm to disfavor” their posts. A Florida law, blocked in court, allows up to $100,000 in statutory damages per claim by individual users.

On abortion, Texas has pioneered a new approach that gives private citizens the right to sue anybody who “aids and abets” an abortion and lets them keep the financial damages, which are set at a minimum of $10,000. This would allow plaintiffs and their lawyers to act as bounty hunters in court.

The American Tort Reform Association (ATRA) — the group Reagan addressed all those years ago — has noticed a trend of more Republicans advocating laws expanding legal liability rather than attempting to rein in lawsuits. Laws encouraging lawsuits against vaccine-mandatory employers are particularly disturbing to the group. Trial lawyers, ATRA President Sherman “Tiger” Joyce tells me, made “a very simple political calculation: ‘Hey, we can’t ignore one party.’ And I think what they’ve found is sympathy from some populist-type Republicans. There’s been an evolution from our standpoint. The plaintiffs’ lawyers have found footholds in places where they previously haven’t.” (Trial lawyers say it’s not about political contributions but about Republicans realizing that private rights of action are effective.)

The growing Republican affection for lawsuits is evident at the federal level, too. Stephen B. Burbank of the University of Pennsylvania and Sean Farhang of the University of California at Berkeley studied 30 years’ worth of bills introduced in Congress with private rights of action, and found that in recent years Republicans were as likely to sponsor or co-sponsor such lawsuit-stimulating bills as Democrats.

The researchers found “escalating Republican Party support for private lawsuits to implement rights. This transformation was driven substantially by growing Republican support for private enforcement in bills that were antiabortion, immigrant, and taxes, and pro-gun and religion.” Conservative Republicans, they found, embraced these private rights of action in part because they lacked confidence that the Obama administration would adequately enforce immigration and abortion restrictions and gun rights.

Then came Trump, who by the time he began his run for the presidency had been involved, along with his businesses, in no fewer than 3,500 lawsuits. As president, he inspired an explosion of lawsuits involving states, trading partners and businesses. In defeat, he and his allies filed more than 60 unsuccessful — and often frivolous — lawsuits seeking to overturn the election. Now, he and his allies are facing a profusion of criminal investigations and civil lawsuits over Jan. 6 and the Trump company’s finances.

George W. Bush had it right: “Somehow the trial lawyers always hold the winning ticket.”

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