Victor Schwartz and Chris Appel of the law firm Shook, Hardy & Bacon — with whom the NAM often works –have a new paper out via the Washington Legal Foundation detailing all the sub-rosa, quiet and sneaky places that members of Congress have written legislation to expand the opportunities for suing people. The method is to turn state attorneys general into ad hoc arms of enforcement for federal law.
The bill writing is done by the allies of the American Association for Justice, the trial lawyer lobby, who sees the legislative approach as supporting their cash-seeking litigation.
What do the Consumer Product Safety Improvement Act, climate change legislation, the Data Accountability and Trust Act, the Federal Trade Commission Reauthorization Act, and the economic stimulus package have in common? If you find yourself struggling for a satisfactory response, you are likely not alone. The common thread is quietly buried in legislation with a far broader agenda in mind. But embedded in each of these bills, and dozens of others, is a specific enforcement provision that allows a federal lawsuit to be initiated by a state’s attorney general.
On the surface, this expansion of a state executive branch’s enforcement authority may appear inconsequential, a mere technical fix to ensure proper enforcement. The reality underlying such provisions, however, is not so immaterial, and the provision’s appearance in federal legislation not quite so random. Rather, the insertion of state attorney general enforcement provisions in select federal legislation is part of a coordinated effort by the organized plaintiffs’ bar to expand the power of these state law enforcement officers. The American Association for Justice (AAJ) (formerly the Association of Trial Lawyers of America) and other groups that follow their lead have spent millions of dollars lobbying to modify federal legislation, including those provisions relating to state attorney general enforcement.
The payoff from the perspective of the AAJ and other groups is, like the answer to the initial question posed in this Legal Backgrounder, not immediately apparent. After all, it would seem that the state attorney general’s office is unrelated to the practices and influences of personal injury trial lawyers. In fact, the ties run so deep that it has become a viable profit-seeking activity for the AAJ and others to work directly to improve the power and autonomy of the state attorney general so that their members may join in expansive state-sponsored litigation.
This is a very important backgrounder on a strategy used by a powerful special interest aligned with members of Congress working to make the United States more litigious and less competitive.
Indeed, the legislation/litigation connection is woefully underreported in the mainstream media. We have seen no newspaper or broadcast story that reports the American Association for Justice’s guest speakers at their San Francisco convention, which include Tim Kaine, Democratic National Committee chairman and Governor of Virginia; Sen. Bob Menendez (D-NJ), head of the Democratic Senate Campaign Committee; Speaker of the House Nancy Pelosi; Rep. Henry Waxman, chairman of the House Energy and Commerce Committee and key author of the Consumer Product Safety Improvement Act; and Sen. Barbara Boxer, the nemesis of BPA and global warming. We reported it at Point of Law and then here at Shopfloor.org. Jim Geraghty at The Campaign Spot has noted the appearance of the peripatetic Tim Kaine in San Francisco, but that’s it.
Congressional and political party leaders hanging out and raising money with trial lawyers in San Francisco. Now why isn’t that a big story?