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"It's Over"?

I just came from a talk by an ATLA officer boasting of the "record number" of trial lawyers elected to the House and Senate, and return to read Alison Frankel in The American Lawyer announce "The power of the plaintiffs bar is on the wane in this country, and will be for a long time to come."

The story nicely catalogs a variety of reform victories in a relatively plaintiff-friendly way (e.g., "Business interests learned that if state judges didn't vote their way, they could replace those judges with others who would", ignoring that it was the plaintiffs' bar who put those judges on the bench in the first place, and financed an attack on reformer judges in Alabama), but ignores underplays setbacks in Wisconsin and Louisiana courts, and the regrouping of the asbestos bar in Delaware. [Correction: Frankel correctly points out in an email that her piece did have a sentence reading "The relatively sleepy Wisconsin Coalition for Civil Justice Reform was just energized by a series of pro-plaintiff state supreme court rulings, and plans to campaign in nonpartisan judicial elections in April"; the piece mentions Delaware in passing, also. I regret the overstatement. Frankel's full e-mail is after the jump.]

Has the plaintiffs' bar peaked? Well, if in the sense that there will never be another fen-phen-like settlement that allows attorneys to steal billions of dollars, and that the defense bar is now warier of the most egregious abuses of the plaintiffs' bar. But fraud continues apace in the plaintiffs' bar in the Vioxx, welding, and asbestos litigations; the plaintiffs' bar is extraordinarily well-funded and seeking new entrepreneurial opportunities to create profitable new causes of action; ATLA is planning an aggressive counterattack with voters and all three branches of government, not to mention the law schools; and Congress, with Sarbanes-Oxley alone, has done about as much to abet the plaintiffs' bar in the last six years as it has to stymie it. Reformers have achieved a lot of success in the last ten years and eliminated a fraction of the worst abuses in the system. But contrary to the title of the piece, it's not "Over."

Frankel writes in response:

I just wanted to point out a misstatement in [Ted Frank's] entry on my December American Lawyer piece, "It's Over."

He says that I ignored developments in Wisconsin and Delaware in reaching my conclusion. In fact, I refer explicitly to both states. To quote from the second-to-last paragraph of the story, I say: "Tort reformers are hardly sitting back and enjoying their gains, though. They're targeting West Virgina, which as proved resistant, so far, to business-backed attempts to change the law and the judiciary; California, where asbestos cases have migrated and claims under disability statutes are on the rise; and Delaware, where there's talk of an influx of class actions. . . . The relatively sleepy Wisconsin Coalition for Civil Justice Reform was just energized by a series of pro-plaintiff state supreme court rulings, and plans to campaign in nonpartisan judicial elections in April."

Similarly, Frank mentions continuing plaintiffs lawyer abuse in the Vioxx, welding fume, and asbestos litigations, with the implication that I was naive or negligent in my coverage of those mass torts. The piece does, however, address all three litigations at some length, with lead defense counsel in both Vioxx and welding fumes quoted extensively.

I welcome Frank's challenge to my thesis--the piece is intended to be provocative--but I don't want your readers to be left with the impression that my research was inadequate or that my presentation of it deliberately ignored contrary facts.


I thank Alison Frankel for writing. I strongly suspect that she's the victim of an overambitious headline writer who put a provocative headline on her reporting that colored one's perceptions of the article; certainly, a weaker thesis is supportable by the facts Frankel reports. Frankel does mention the Vioxx and welding litigation (I didn't indicate otherwise), but does not mention the extensive fraud (and failure by trial courts to correctly apply Daubert) in those mass torts, and the press has almost completely disregarded this scandal. Some time in 2007, American Lawyer will print a cover story showing that the 200 largest law firms (which are largely defense firms) have reached record profits and revenues for the umpteenth year in a row, despite the fact that the American IPO market is largely drying up. That's hardly a sign that American business has found respite from a previously relentless plaintiffs' bar when demand for $400+/hour litigators is only increasing. It is far too premature to declare victory when there is so much reform that remains to be done before the system can be said to be working optimally, especially when there are so many special interests who are redoubling their efforts to pull the legal system in the wrong direction.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.