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Philip Howard: Bills to watch for (watch out for!) in Congress

Legal author Philip Howard concluded his written statement yesterday to the Senate Republican Conference hearing on legal reform by expressing concern about the "proliferation of legislation already introduced in this Congress which seeks to expand the right to sue." It's a good list.

Underlying many of these bills is the assumption that lawsuits are the best way to resolve disputes. This assumption ignores the fact that there are often alternatives that are cheaper, more efficient, more balanced, and more responsive to our common interests.

For that reason, I am concerned about the bills that seek to ban arbitration, particularly S. 512 and H.R. 1237 (no arbitration in nursing home contracts), H.R. 1020 (no arbitration in employment, consumer and franchise agreements), H. R. 991 (no arbitration in certain consumer contracts. See also H.R. 1214; S. 263. If there are specific concerns about arbitration in specific areas, those concerns should be addressed--but not by eliminating a quicker and more cost effective way of resolving disputes.

Similarly, I am concerned about the bill (S. 537) that would limit the enforceability of protective orders that would seal discovery in many types of civil cases, because it appears to discourage settlement.

Another bill that would seem to encourage litigation is one that would give new tax breaks to personal injury lawyers to deduct loans to clients as upfront business expenses (S.437).

A bill expanding False Claims Act claims would have many pernicious effects, expanding what was originally a system to safeguard against government fraud to a vast range of organizations that receive government funds.

Don't think we've mentioned S. 537 at POL before. Sponsored by Sen. Herb Kohl (D-WI) and Sen. Lindsey Graham (R-SC), it's called the Sunshine in Litigation Act of 2009.

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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.