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Kagan on tort reform

We've previously written about Kagan's role in the Clinton administration opposing product liability reform, an act that helped bankrupt two of the Big Three auto companies a decade later. Now we learn from the New York Times that Kagan all but single-handedly persuaded Clinton to veto the Private Securities Litigation Reform Act, which suggests that she'll care more about the effect on trial lawyers than on regular Americans when it comes to pleading standards cases. Furthermore, Kagan's clerkship memos to Justice Marshall suggest she was on the wrong side of DeShaney, putting her to the left of Stevens (well, the 1989 version of Stevens, anyway) on this issue. By the end of his tenure, Stevens was reflexively voting in favor of expanding the role of courts in society and against anything that might put reasonable limits on liability—he was the sole dissent in Twombly and Tellabs, for example. So while Kagan isn't likely to pull the Supreme Court that much further to the left, there is no reason to think she is a moderate on civil justice issues.

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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.