Obama and Tort Reform

In the final presidential debate, Senator Barack Obama was asked to name a situation where he stood up to leaders of his own party. The answer Senator Obama most forcefully pointed to was his vote in 2005 for the Class Action Fairness Act (CAFA) which he described as standing up to trial lawyers. The CAFA shut down state courts as a venue to hear many class-action lawsuits, which has had an impressive deal of impact on some types of class actions.

Senator Obama is correct that this was the path less traveled by other progressive candidates. Hillary Clinton and Joe Biden both voted against the Class Action Fairness Act as did other notable Democrats such as Dick Durbin, Ted Kennedy, Pat Leahy, Barbara Boxer, and Maryland’s then-Attorney General Joe Curran.

Does this mean Senator Obama is in favor of tort reform? I really do not think so. He has consistently been against any kind of tort reform for medical malpractice damage caps in the Illinois legislature and in the U.S. Senate.

It is an open question whether the CAFA is a bad law for lawyers who did not drink the “anything that limits plaintiffs’ rights in any way is a bad thing” Kool-Aid. Lawyers typically take a knee jerk reaction by opposing any changes in the system. (I’m probably guilty of this.)

But I know that I take exception to some of these consumer lawsuits where the lawyers make a fortune and the plaintiffs only receive a free oil change and 10% off their next purchase of the Defendant’s product. While I appreciate the important deterrence effect that trial lawyers can have on bad corporate conduct, I think there is a problem when the actual victims do not get any meaningful compensation. I’m not proposing a better solution; I just have some concerns about those types of cases which I think are the kind most affected by the CAFA.

I also disagree with the notion that many offered against the CAFA that state judges, as opposed to federal judges, are better equipped to handle consumer protection laws because they sometimes involve state, rather than federal law. First, I don’t think there are enough consumer law cases such that state court judges would be familiar with them. I’ve spent enough time in front of federal court judges to be confident that these are smart people who can figure these kinds of things out.

Ironically, Republicans, the party of states’ rights, voted for the bill en masse. I think there are about 11 people in the country who really care less about the balance between the states and the federal government. It is a hard thing to get passionate about in 2008. A person who sings the States’ rights mantra, or federalism, quickly abandons the song when it conflicts with an issue that really matters to them.

Going back to the topic at hand, I do not blame him for taking a shot at trial lawyers: we are easy targets and most trial lawyers will vote for Senator Obama anyway on a host of other issues that have nothing to do with tort reform. But I think Senator Obama will help decrease the number of medical malpractice lawsuits the way it should happen: by fighting for changes that will decrease the number of people who are seriously injured or die each year because of medical malpractice – almost 100,000 malpractice related deaths a year in the country, according to the government.

I also think Senator Obama will support legislation that will overturn the dreadful decision the Supreme Court made in Medtronic v. Riegel and the dreadful decision they may well make in Wyeth v. Levine.

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