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Trial Lawyers, Inc.: K Street -- Foundations

For today's entry on Trial Lawyers, Inc.: K Street, I'm going to briefly summarize how we got to this place (i.e., how did the law evolve, and plaintiffs' bar evolve with it, to get to its current position of power?). The legal evolution is covered briefly in the report (here), though in far more detail in earlier published writings, like my colleague Peter Huber's Liability (particularly good on substantive law, chs. 2-5) and my colleague and our editor Walter Olson's The Litigation Explosion (particularly good on procedure, chs. 4-6 & 9). The best accounting I know of the institutional development of the plaintiffs' bar is my law school classmate John Fabian Witt's Patriots and Cosmopolitans (ch. 4).

For substantive law, the major trends were the erosion of contract in product liability (see, e.g., Henningsen v. Bloomfield, 161 A.2d 69 (N.J. 1960)); the emergence of strict liability for at least some tort claims (see, e.g., Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 (1963)); and the enshrinement of such standards -- and the "failure to warn" doctrine that's led to those wacky warning labels -- in the Second Restatement of Torts, Restatement (Second) of Torts sec. 402A (1965). Lawyers pretty much take these doctrines for granted today, but they were a pretty radical shift, in a very short period of time, led primarily by California justice Roger Traynor (who wrote the Yuba Power opinion) and law professor William Prosser (who led the drafting of the Restatement for the American Law Institute).

Procedural rules also shifted radically, both before and after the substantive law's overhaul. The 1938 Federal Rules of Civil Procedure, crafted principally by Yale Law School dean Charles E. Clark, gutted the old, formalistic common law pleading rules and substituted two key underpinnings of modern litigation: open-ended "notice" pleading (Rule 8(a)) and mandatory, open-ended discovery (Rules 26-37). As we note in the K Street report: "Clark's vision was to allow virtually any claim to have its day in court -- where the truth of the matter would be determined -- but it failed to anticipate the economic realities that the new system would create. The Federal Rules' new, open-ended discovery process enabled wildly expensive fishing expeditions and -- in combination with the 'American rule' that each side in litigation must bear its own costs -- encouraged shakedown suits and other forms of what was, in effect, legal extortion." The pleading rules that Arlen Specter views as sacred writ were in fact key underpinnings of the litigation explosion. When the Federal Rule for class actions (Rule 23) was changed in 1966, from an "opt in" to an "opt out" rule -- effectively letting lawyers drum up cases without clients -- a whole new class of litigation was born.

These trends in substantive and procedural law hardly tell the full story of legal expansion. Melvin Belli -- the flashy lawyer who Life magazine dubbed the "King of Torts" in 1954 -- not only played a major role in the evolution of substantive tort law (he was the plaintiffs' counsel for Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453 (1944), in which Justice Traynor in concurrence laid out his enterprise liability theory that would be come the law in Yuba Power), but also helped to formulate theories of noneconomic damages and the presentation of evidence that drove up jury awards. The U.S. Supreme Court got in on the game, both by creating the conditions for forum shopping, see Erie v. Tompkins, 304 U.S. 64 (1938) (eliminating almost a century of federal common law); International Shoe v. Washington, 326 U.S. 310 (1945) (beginning the trend toward sweeping personal jurisdiction of state courts over corporate defendants), and by establishing a First Amendment right for attorney advertising, Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Unsurprisingly, given all these shifts that expanded liability -- and America's open democratic process -- the plaintiffs' bar emerged as a powerful political lobby. Melvin Belli played a key role here, too. In 1949, Belli convinced the nascent National Association of Claimants' Compensation Attorneys (NACCA), a group formed to lobby for more generous workers' compensation payments, "to admit all tort lawyers rather than merely those representing injured workers." As Witt tells it, "Within just a few short years, the NACCA had become an organization dedicated not to the improvement of the workmen's compensation system, but to its rollback. By the early 1950s, NACCA advocated the abolition of workmen's compensation."

In 1960, the group now representing the institutional plaintiffs' bar changed its name to the National Association of Claimants' Counsel of America. In 1964, it became the American Trial Lawyers Association (ATLA), keeping the acronym but switching to the Association of Trial Lawyers of America in 1972 (in reaction to an objection by the more august American College of Trial Lawyers). In 2006, ATLA rebranded itself the "American Association for Justice," which, as we note in the K Street report, is "a moniker less suggestive of a lobbying group for plaintiffs' lawyers than of the Justice League of America, the team of superheroes in the 1970s Saturday-morning Super Friends cartoons."

ATLA's first political action committee, the Attorneys Congressional Campaign Trust, was founded in 1979, when it gave $400,000 to campaigns. As noted in yesterday's overview, that amount quickly grew until the lawyers' PAC was a dominant player in political giving. Even more significant, however, were the state of post-Watergate campaign finance reforms and the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976), which -- as I suggested yesterday and in my Wall Street Journal column -- facilitated the emergence of the plaintiffs' bar as the top bundler of political contributions to federal campaigns.

Before turning to the effects of that political influence, at the state and federal level, tomorrow I'll look at lawyers' public relations efforts, with a focus on their outreach to three constituencies: the academy, the media, and consumer groups.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.