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Introduction
"It is no secret that, for more than three decades, business interests have invested billions of dollars to sell the public a distorted view of a legal system that is justifiably envied throughout the world. They say rampant litigiousness requires tort "reform" that restricts the legal rights of injured people, not those of businesses suing businesses, which account for most litigation. What they seek, really, is corporate welfare-assurance that their misdeeds will be paid for not by them, but by others."[2]- Richard H. Middleton, Jr., President, Association of Trial Lawyers of America, 1999-2000
Former ATLA President Richard Middleton, Jr., is correct in stating that "for more than three decades, business interests have invested billions of dollars to sell the public a distorted view of a legal system." Influencing public opinion has been a key strategic aim of the business-driven campaign for so-called "tort reform," which is designed to limit corporate liability, prevent civil lawsuits against corporations, and restrict citizens' ability to pursue recourse in the courts.
In addition to these corporate backers of tort reform, however, there are also politically-oriented right-wing think tanks and other organizations, many not directly associated with industry, that have played a major role in promoting "tort reform."
This Commonweal Institute Report, The Attack on Trial Lawyers and Tort Law, shows that, in addition to the expected corporate-front organizations like the American Tort Reform Association (ATRA) and Citizens Against Lawsuit Abuse (CALA), the "tort reform" movement is ideologically associated with a network of organizations, such as the Washington Legal Foundation, the Cato Institute and the American Legislative Exchange Council, which are part of what they themselves call the "conservative movement." This web of "movement" organizations receives general operating support, project grants, and strategic guidance from a core group of ideological far-right-wing foundations that has been working for nearly thirty years to alter public attitudes and move the national agenda to the right.
This web of right-wing organizations funds and supports many other voices that speak on behalf of tort reform and other issues. The people who write the books are funded. The people who write the op-ed pieces are funded. The people who speak on radio and cable TV shows are funded. The people speaking to public interest organizations are funded. Even the people who initially write many of the templates for letters to the editor are funded. In addition to funding these individuals, the right-wing organizations provide them with institutional bases and access to publishers and media.
These right-wing movement organizations have a broad political agenda. They advocate an anti-government ideology that promotes privatization, deregulation, Social Darwinian competition and free markets as solutions to all social problems. By pushing underlying public attitudes ever closer to their ideology, the right-wing organizations have created a political climate favorable to politicians and public officials who advocate tort reform.
The right-wing movement has two major interests in tort reform:
1. Their ideological interest is in weakening constraints on the conduct of corporate entities, and,2. Their tactical interest is in limiting the income of trial lawyers, thereby limiting the attorneys' ability to lobby and contribute money to what they call "the left."
Trial lawyers and the system of tort law that they support are losing ground. When one looks at major print and broadcast media, at public opinion polls, and at the positions taken by politicians of both major parties, it is clear that there has been a steady shift toward the Right's and the tort-reform movement's attitudes and policies. There is very little reaching major media that frames issues in terms that favor trial lawyers and injured parties. As a result, there is a virtual monopolization of the marketplace of ideas by the Right and tort reform advocates.
Much of the success of the Right's network of organizations comes because they are seen as "independent voices" that are not tied to the insurance industry or other businesses that benefit from the tort reforms they advocate. The independent voices function as a major means of "selling the public" on the purported need for tort reform. This tactic benefits special business interests and conservative movement organizations, and has made them formidable opponents of trial lawyers.
Trial lawyers, too, would benefit from credible independent voices educating and persuading the public of the value of a robust system of tort law. This report will help trial lawyers, and other groups under attack by the Right, recognize the power and effectiveness of the Right's message communications infrastructure. Further, by implication, the report shows the potential benefits of funding comparable organizations to serve as independent voices in the public interest.
Proceed to Section 1 -- Tort Reform Organizations and the Far Right