Saturday, March 12, 2011

Clarion call concerning AL legislative session and tort reform

In the spring of 2011, Alabama citizens continue with great concern about the economy and their jobs and about the viability of governmental benefits and services they need.  These concerns place stresses on state and local governments to perform in the best way possible to be a positive force in governing.

There are trade offs in governmental actions to address citizens' concerns.  In the news currently are the large burdens of public employee pension and health benefits that many believe have gotten out of hand as the result of irresponsible actions and promises of politicians in the past, possibly unduly resulting from vote buying that is done by politicians.  Cutting back the benefits will help state and local governments and also a majority of the citizens, but it will entail hardship for public employees.  These are not easy choices.

The controversy about public employee beneifits is one upshot from the loud message that was sent in the 2010 elections that "business as usual" by politicians will not be tolerated and they need to do a better job in trying to help solve the country's problems at the federal, state and local levels.  Soul searching by lawmakers is called for about putting the public's interest ahead of their own and not being corrupted by the campaign contributions of the special interests.

In that vein, the current session of the Alabama legislature provides an opportunity for lawmakers and the citizens to renew their evaluation of plaintiffs' lawyers and tort reform policy issues.   The bills that are introduced and considered may be very narrowly focused.  To try to figure out how to vote, the lawmakers ought to try to see the big picture on the policy issues involved.  If they reach conclusions about the big picture, that can provide guidance about how to vote in the push/pull on narrowly focused "reform" bills.

This has been around for a long time.  There have been ongoing tort reform efforts, and the plaintiffs lawyers have been relentless in trying to fend off, undermine and get around tort reform.  That battle continues in the spring of 2011 in Montgomery.

It can be hoped that Alabama lawmakers will do a good job in considering and acting on tort reform bills that are introduced in the current legislative session.  Ultimately, doing a good job means figuring out what is in the best interests of Alabama citizens.  This is not black and white, there are trade offs, and lawmakers must parse through the contentions that may be made plaintiffs' lawyers, Chambers of Commerce, doctors, and others who have a special interest in the matter of tort reform.

The policy questions involved, and the arguments on those questions, are not simple.

One side of the argument is that class action and other civil litigation abusively impose unjustifiable costs and burdens on the economy, in order to enrich plaintiffs' lawyers and serve their interests.

The other side of the argument is that the costs and burdens are warranted for purposes of allowing proper compensation of harmed plaintiffs and also deterring wrongdoing.

To get information, there are several good books that state the case against  plaintiffs' lawyers and in favor of tort reform.  These include Walter Olson, The Rule of Lawyers; and Phillip Howard, The Collapse of the Common Good and The Death of Common Sense.  Also, there are several good websites for information, such as Walter Olson's http://overlawyered.com/  and Ted Frank's Center For Class Action Fairness .

I have written several pieces that attempt to state the case against plaintiffs' lawyers, which can be found in this blog and which are linked here .   I would particularly recommend ALABAMA SUPREME COURT-1994 and Does the Law Undermine Business Ethics?

I am not currently in a position to recommend good books or comprehensive law review articles  that state the case in support of plaintiffs' lawyers and against tort reform.  I have solicited and will continue to solicit from plaintiffs' lawyers and their supporters citations of books and articles that they recommend and will post such citations here if and when I receive them.

I consider the main argument in support of the plaintiffs' lawyers is that lawmakers and regulators are corrupted by special interest money and they fail in their fiduciary obligations to the citizens to pass laws and promulgate regulations that are a reasonable outcome of acceptable democratic processes that balance the interests all concerned parties.

I think law professors, business school professors and others in Alabama who have relevant expertise ought to be willing to provide their views to lawmakers about the policy questions at issue and the argumentation relative to the same.  I have solicited this in the past and will do so again at this time.  Judges, regulators, criminal prosecutors and the Alabama attorney general ought to be able to provide useful views too, and I will attempt to solicit that.  Newspapers and television news departments should report on the subject matter.


The current Alabama legislative session presumably has many things on its plate to try to be a positive force in governance addressing the citizens' concerns about the economy and their jobs and the viability of government benefits and services.  Tort reform issues are deserving of careful attention by Alabama lawmakers this spring.   The bills that are introduced and considered may be very narrowly focused.  To try to figure out how to vote, the lawmakers ought to try to see the big picture on the policy issues involved.  If they reach conclusions about the big picture, that can provide guidance about how to vote in the push/pull on narrowly focused "reform" bills.