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Blocking the Courthouse Door

How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue

March 30, 2007
Stephanie Mencimer
Free Press, 2006

Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.

– John Adams, 1774

A couple of decades ago, a loose affiliation of insurance companies, the tobacco industry and a number of like-minded large corporations looked closely at their balance sheets and realized that paying out settlements awarded by juries for cases in which they were found negligent or liable was costing them a lot of money. Since even the most effective lobbyist coalition might find it difficult to overturn the constitutionally guaranteed right to a jury trial, the coalition began working on the next best thing: to subvert, obstruct and erode the jury settlement process.

The challenge was enormous – how exactly do you garner widespread public and political support for such an odious cast of characters and a narrow agenda? After all, the public brooked great love for insurance companies who don’t pay claims and nefarious interests such as Big Tobacco. They found the answer, in essence, in Hegel. The German philosopher had laid the basis for the sharpest political tool in the drawer: Problem-Reaction-Solution politics. Institutionalized by Leo Strauss, the neocon’s mentor, the scheme of seeding the public’s mind with the imagined dangers of a manufactured crisis would cause them to react with alarm and clamor – at which time a prepared solution would be put forward. As convicted Nazi propagandist Hermann Goering described the fundamental scheme in 1945, “It works the same in any country – you tell the people they are under attack, and then denounce the peacemakers for their lack of patriotism and exposing the State to danger.”

In the early 1990s, political strategist Karl Rove crafted a similar, three-stage problem-reaction-solution strategy to subvert and obstruct the individual’s legal recourse to a jury trial and settlement – in other words, to “block the courthouse door.” The results have been dramatic. Plaintiffs now face an ever-increasing number of obstacles to assert their legal rights to a jury trial. At the same time, Rove’s strategy resulted in steadily diminished funding for the political organizations and their allies that would defend this right by what Grover Norquist called “defunding the trial lawyers.”

Armed with solid research and a clarion call to action, Washington Post columnist Stephanie Mencimer demonstrates how the obscure legal concept of tort reform became political gold for the Republican Party and its business allies. In 1994, Rove persuaded untested Texas gubernatorial candidate George W. Bush, Jr. to declare war on "junk lawsuits," and another perfect wedge issue was born. To accomplish their practical goals, the groups that Ralph Nader describes as the “Corporate Wrongdoers Lobby” turned to the three-part political strategy. First, by creating think tanks and placing stories in key newspapers and radio, a false “crisis” is manufactured or distorted. In this case, an alleged “out of control litigation crisis” is claimed to be harming the economy and costing Americans their jobs. This “crisis” is then amplified to near panic levels, causing concern and worry among the electorate. At the right moment, the “solution” to the problem is presented by conservative idealogues, in the form of placing more reactionary judges on the bench and arbitrarily capping liability and malpractice settlements. All this makes for effective campaign slogans, but what the public doesn’t know is that they are in fact voting to restrict their own access to legal recourse, and their own right to trial by jury. Mencimer’s book serves its written purpose: “a wake-up call about what’s been lost – and what else we are about to lose – as the nation embraces the corporate war on lawsuits.”

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