Subscribe Subscribe   Find us on Twitter Follow POL on Twitter  



Obama and liability reform

Mickey Kaus asks whether Senator Barack Obama passes the "Joe Klein Piss-Someone-Off" test. I can think of one example—though it may be a better example of what Kaus calls a "Sister Faux-jah" trumped-up contrarianism.

In one of his first votes, Obama voted for the eminently sensible Class Action Fairness Act. This hypothetically annoys the litigation lobby (though they can be expected to support Edwards in 2008) and the cast of usual suspects who opposed the bill; one can also find various members of the lunatic left thoughtlessly buying the litigation lobby hype that this minor procedural reform protecting against abusive forum shopping by the plaintiffs' bar had much larger consequences, and thus expressing outrage against Obama for voting for it. One ill-informed website looks at contributions to Obama from his Harvard Law classmates and Chicago Law students at various defense firms and concocts a conspiracy theory that the defense bar bought him off; one wishes the same skepticism was aimed at anti-reform politicians and plaintiffs' bar contributions.

So Obama may have annoyed the lunatic left with his vote for CAFA. As a reform supporter, I'm far from convinced that this makes him someone willing to cross the plaintiffs' bar. Eighteen other Democrats also voted for CAFA. CAFA would have passed the previous Congress, except for its unfortunate timing arising just as Edwards had been named the vice-presidential nominee; Democrats fell into line and filibustered the bill to avoid having a civil justice reform pass at the same time, which might remind people of Edwards's unsavory means of acquiring his fortune on the backs of pregnant mothers and obstetricians. Obama didn't participate in the negotiations to get Democratic support, and he voted for every Democratic attempt to eviscerate the bill with amendments (Vote Record Numbers 5 through 8, February 9, 2005). Obama didn't break with the Democrats on any seriously contested tort reform measures: he filibustered medical malpractice reform, and was one of the votes to kill the asbestos reform bill (which effectively failed by one vote). (I was not a great fan of the flawed asbestos reform bill, either, but Obama's opposition does not seem to have been based on the grounds that the bill did not go far enough to rein in abusive litigation.) Obama claimed to support medical malpractice reform in his Senate campaign (or, at least, made pro-reform swing voters think that he did), but, then, so did Kerry and Edwards in their 2004 presidential campaign.

Obama co-sponsored the MEDiC bill with Hillary Clinton; it was a federally-funded variation of the so-called "Sorry Works" proposal that the plaintiffs' bar has elsewhere proposed as an alternative to medical malpractice reform. Data is limited on the question of whether this would be an effective reform on either the question of liability expense or patient safety (much less taxpayer expense), but, so long as state governments are deadlocked on issues of substantive reform, a pilot program such as MEDiC may be worth trying, as its success or failure would provide answers on the legitimacy of measures such as caps. But it's hardly the move of someone daring to flout the trial lawyers who dominate the Democratic Party these days.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.