environmental and other class action lawsuits about to go bye bye

[Guest guest]

EXTREME THREAT TO CLASS ACTION LAWSUITS

 

July 10, 2003: Sometime during July, right-wing extremists in

Congress expect to achieve another major milestone in their

radical revamping of the U.S. court system. If they attain

their goal, successful environmental class-action lawsuits will

become as rare as Dodo birds.

 

Class action lawsuits are the only effective remedy when large

numbers of people are harmed but each person sustains

relatively small damages, making individual lawsuits

inefficient or impossible.

 

An example would be the current lawsuit being pursued by 6000

residents of Louisiana who say that a Mobil Oil refinery

discharged 3.4 million gallons of untreated industrial wastes

that contaminated their drinking water. No individual plaintiff

could take on Mobil alone, but the total damage may be large,

so a class action is the right vehicle for pursuing a remedy.

 

Class action suits are an essential component of a balanced

legal system that is supposed to provide a check on the

misdeeds of the powerful, such as oil corporations, by raising

the threat of substantial financial penalties.

 

With large numbers of right-wing extremists now sitting in

Congress, corporations see an opportunity to derail class

actions. So the elected representatives of the insurance,

medical, chemical, oil, and automobile corporations are pushing

a new law intended to stifle class actions. The proposed Class

Action Fairness Act has already passed the U.S. House of

Representatives (H.R. 2115) and is expected to come up for a

U.S. Senate vote (S. 274) during July.

 

If the proposed law passes, it will severely restrict, if not

totally derail, class-action lawsuits on behalf of the

environment, workers, consumers, and civil rights plaintiffs

such as people of color, people with disabilities, and women.

 

Few in the environmental community have been paying attention

as this bill has made its way through the legislative process.

Corporations, on the other hand, know exactly what's at stake

and they have poured money and resources into this fight.

 

At last count, corporations had 475 paid lobbyists working to

push this bill through the Senate -- nearly five corporate

lobbyists for each U.S. senator. The insurance industry alone

has 139 lobbyists promoting the bill. Health maintenance

organizations have 59 lobbyists pressing their case; banks and

consumer credit corporations have 39; automobile corporations

have 32; the chemical industry has 20 and the oil corporations

have another 19. If this proposed law didn't matter, would

corporations field such an army?

 

To inform yourself about this proposed law, you can check with

Public Citizen at

http://www.citizen.org/congress/civjus/class_action/articles.cf

m?ID=9320. For details, you can read their 95-page report,

"Unfairness Incorporated: The Corporate Campaign Against

Consumer Class Actions" (June, 2003), available at

http://www.citizen.org/congress/civjus/class_action/articles.cf

m?ID=9846 .

 

You can also learn about the proposed law from the U.S. Chamber

of Commerce at

http://www.uschamber.com/Search/SearchResults.asp?ct=USCC & q1=cl

ass+action+fairness+act .

 

If you decided you wanted to weigh in on this issue, you could

call both of your U.S. senators and give them an earful. (To

find your senators and their phone numbers, go to

http://www.senate.gov/ .) Proponents of the bill reportedly

have at least 55 senate votes in the bag already, so the only

way to stop this juggernaut would be a filibuster. (Extremists

in Congress are working to revise the filibuster rule, too.)

 

Essentially the proposed law moves all class action lawsuits

out of state courts and into federal courts, which are already

clogged and fraught with delays, and where the rules and most

of the the judges are biased against environmental, labor,

consumer and civil rights plaintiffs such as women, people of

color and people with disabilities. Much of the federal court

system is now grossly pro-corporate, often to an extreme

degree. This is no accident.

 

Making the courts friendly to corporations has been high on the

agenda of the right wing for 30 years. The reason is simple:

there are only about 900 federal judges. They are appointed by

the President, not elected. The Senate must approve their

appointment but by "gentleman's agreement" it is rare for the

Senate to veto a judicial appointment.

 

Federal judges serve for life, so once they are appointed they

become unstoppable. They also have almost complete freedom to

make any legal interpretation that suits their ideology. The

only real check on their rulings is the threat of reversal (an

embarrassment, nothing more) by one of the nation's 13 federal

circuit courts of appeal. But judges on the appeals courts are

often chosen from the ranks of the more extreme federal judges,

so they are all pretty much cut from the same ideological

cloth. It's a closed system with stupendous power to change an

entire culture. When an extremist right-wing agenda cannot be

enacted through legislation, it can be engineered through the

courts.

 

This explains why right-wing ideologues set out in the

mid-1970s to pack the federal courts with their own kind, then

to "educate" the judges about economics and ideology by

inviting them to all-expense-paid "workshops" held at vacation

resorts,[1] and then to engineer changes in precedents and

procedures -- all for the purpose of making federal courts

sympathetic to corporations and the rich.

 

Previously, no one had ever set out to take over the entire

federal court system. The plan was breathtaking in its reach

and it was generously funded by the banking and oil fortunes of

the Mellon-Scaifes of Pittsburgh, the manufacturing wealth of

Lynde and Harry Bradley of Milwaukee, the energy revenues of

the Koch family of Kansas, the chemical fortune of John M. Olin

of New York, the Vicks patent medicine empire of Smith

Richardson of North Carolina, and the brewing fortune of the

Coors family of Colorado. Over two decades, the plan unfolded

with huge success.

 

Now that the courts are dominated by right-wing judges, the

extremists in Congress want the "Class Action Fairness Act" to

require all class-action suits to be heard by "their" judges,

not by state court judges who are often elected and therefore

less likely to espouse extreme legal theories.

 

Though no one likes to mention it, there's also a simple

electoral goal behind The Class Action Fairness Act. The

Democratic Party has three identifiable sources of major

funding: organized labor, Hollywood, and plaintiffs' lawyers

who handle most of the nation's class-action lawsuits.

Derailing class actions would add substantially to the

Republicans' financial advantage at election time.

 

The original plan to bend the courts to corporate/ideological

purposes was hatched in 1971 by a southern lawyer named Lewis

F. Powell, Jr., who drafted a document called "Confidential

Memorandum: Attack on the American Free Enterprise System."[2]

The U.S. Chamber of Commerce circulated the Powell memo to all

its members.

 

Powell argued in 1971 that the U.S. economic system was under

sustained attack and might not survive if its critics were

allowed to continue unopposed. He identified four areas where

he thought corporations and the rich needed to fight back

aggressively and regain control: higher education, the media,

Congress, and the courts. Two months after circulating his

memo, Powell was appointed to the U.S. Supreme Court by Richard

Nixon.

 

Ultimately the Chamber of Commerce decided not to lead the

charge that Powell tried to incite. But when others read the

Powell memo they ignited a right-wing revolution.[3] Adolph

Coors -- the beer magnate -- acknowledged that the Powell

manifesto convinced him to put the first $250,000 into what

would become the Heritage Foundation, an important think-tank

for extremist views to this day. Modeled on the Heritage

Foundation, we now have the Manhattan Institute, the Cato

Institute, Citizens for a Sound Economy, and dozens of other

think tanks that crank out right-wing propaganda, policy

proposals, books, magazines, reports, and attacks on the

nation's liberal heritage.

 

Their basic message is rather simple: a Libertarian devotion to

individual rights (and denial that a "common good" even exists)

mixed with worship of a mythical "free market" which opposes

regulation of any kind -- except regulation that helps

transnational corporations achieve global dominance.

 

Veteran journalist Jerry M. Landay has described the 30-year

effort to transform the U.S.:

 

"The house that so-called New Conservatism built has operated

on the principle that 'ideas have consequences.' The principal

'ideas' they marketed were individual gain over public good,

deregulation, big tax cuts, and privatization. For two decades,

since the installation of Ronald Reagan in 1980, the radical

right has run a tightly coordinated campaign to seal its hold

on the organs of power, ranging from the highest law courts to

the largest corporations, from the White House to Capitol Hill,

from television tubes to editorial pages, and across college

campuses.

 

"They have constructed a well-paid activist apparatus of idea

merchants and marketeers -- scholars, writers, journalists,

publishers, and critics -- to sell policies whose intent was to

ratchet wealth upward....

 

"They shifted the nation rightward; tilted the distribution of

the nation's assets away from the middle class and the poor,

the elderly, and the young; they red-penciled laws and legal

precedents at the heart of American justice. They aimed to

corporatize Medicare and Social Security. They marketed class

values while accusing their opponents of "class warfare." They

loosened or repealed the rights and protections of organized

labor and the poor, voters, and minorities. They slashed the

taxes of corporations and the rich, and rolled back the

economic gains of the rest. They came to dominate or heavily

influence centers of scholarship, law, and politics, education,

and governance -- or put new ones in their place. Their

litigation teams nearly overthrew an elected President. And, to

maintain power, proclaimed Constitutionalists on the right, to

this day, wage a concerted counter-revolution against such

Constitutional guarantees as free speech and separation of

church and state....

 

"This has amounted to the greatest organized power grab in

American political history. Astonishingly, it goes largely

unreported on television, radio, and most newspapers...."[4]

 

By the time Ronald Reagan came to power in 1980, the right wing

was intent on taking over the courts. As the Washington Post

observed, "...selection of conservative judges was a

cornerstone of the Reagan administration."[5] In 1991 the Post

noted that George Bush the Elder "is cementing Ronald Reagan's

conservative transformation of the federal courts in the

biggest turnover of federal judges since the New Deal of

Franklin Roosevelt...."[5]

 

When Bill Clinton appointed moderate judges -- 60% of them

women and people of color -- the Senate Judiciary Committee

under the control of extremist Orrin Hatch simply refused to

schedule confirmation hearings, thus barring many Clinton

appointees from ever taking office. This perfectly-legal

maneuver created a raft of opportunities for ideological

judicial appointments by Bush the Lesser. Those appointments

are now in the works.

 

Not surprisingly, corporations have formed a special lobby

group called the Committee for Justice to raise millions of

dollars to strongarm Congress on behalf of Mr. Bush's judicial

picks.[6] The Committee is dominated by lawyers representing

firms like Citigroup, Microsoft and R.J. Reynolds Tobacco, all

of which are facing class-action lawsuits. They, more than

anyone else, understand the importance of installing

right-minded federal judges who can be counted on to render

right-minded decisions in class-action suits.

 

=================

 

[1] See Rachel's #732.

 

[2] Powell's "Confidential Memorandum" can be found at:

http://www.rachel.org/library/getfile.cfm?ID=178

 

[3] Jerry M. Landay, "The Attack Memo That Changed America,"

available at: http://www.rachel.org/library/getfile.cfm?ID=179

 

[4] Jerry M. Landay, "The Conservative Cabal That's

Transforming American Law," Washington Monthly (March, 2000).

Available at http://www.rachel.org/library/getfile.cfm?ID=180

 

[5] Ruth Marcus, "Bush Quietly Fosters Conservative Trend in

Courts," Washington Post Feb. 18, 1991, pg. A1.

 

[6] Jesse J. Holland and Jonathan D. Salant (Associated Press),

"Lobbyists Tout Bush Judicial Picks," Philadelphia Inquirer

July 5, 2003, pg. unknown.