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Tort reform opponents play race card

Apparently lacking in meritorious arguments, opponents of tort reform have resorted to a strategy of accusing tort reform advocates of racism. According to the "Center for Justice and Democracy," "racial prejudice lurks behind the 'tort reform' movement." Among the out-and-out lies in the press release: "'Tort reform' laws weaken the only available forum, in some cases, for holding perpetrators of hate groups and hate groups accountable." But not even the scare paper supports this.

The report suggests that volunteer immunity laws are really a Trojan horse to provide protection for "volunteers for the Ku Klux Klan." (You may recall that the American Trial Lawyers Association recently falsely suggested that those very same volunteer immunity laws refuted the premise of a recent Newsweek cover story. (see Jan. 9; Dec. 12).)

Evidence? Well, none whatsoever. The CJD cites successful lawsuits against the Klan and Aryan Nations for assaults, a murder, and a church burning, but no tort reformer has suggested that civil liability be limited for those who commit violent crimes or intentional torts. Certainly, the Volunteer Protection Act of 1997 does not; aside from the exclusion in the law for hate groups, the supposed "loophole" that permits states to provide additional protections for volunteers would have no effect on a federal suit for deprivation of civil rights.

How far does the CJD stretch to include this VPA "loophole" into their evidence of tort reform "racism"? They fail to identify even a concrete scenario where a victim would be subject to a liability exclusion. The one attenuated hypothetical they suggest--involving a KKK volunteer "negligently entrusting" a weapon to a child who harms an innocent victim--not only depends on a state passing a tort reform measure that no one has proposed, but fails to present a case where the plaintiff would not have relief: if the event was outside the scope of the volunteering, the volunteer would have no protection; and if the event was within the scope of the volunteering, there would be liability against the organization. Not to mention that any plaintiffs' lawyer would use the truck-sized loophole in the VPA to sue the volunteer for "gross negligence."

Yet a full quarter of the CJD report is premised on the supposed desire of tort reformers to protect the KKK. The report is a disgusting and offensive slur; will tort reform opponents disclaim it? Don't count on it.

[cross-posted from Overlawyered, where it ran Mar. 19, 2004]

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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.