Defcon One

[WhiskeyGirl]

Tort Reform
November Election A Lawyer's Delight

Daniel Fisher, 08.11.08, 6:00 AM ET

It can hardly come as a surprise that Barack Obama, Harvard Law Class of '91, is popular with lawyers. They've given him $21 million in donations so far, compared with a measly $7 million for Republican rival John McCain.

But like all things Obama, the picture is cloudier than it first appears. Most of Obama's lawyer money came from defense firms. He got the single biggest slug of cash from Kirkland & Ellis, the Chicago law firm that represents Marlboro merchant Philip Morris and asbestos manufacturers, among others. He also co-sponsored a bill designed to cut down on malpractice litigation in 2005, and voted for the Class Action Fairness Act, a law that made it harder for trial lawyers to file some of their most lucrative cases.

Those actions send pangs of doubt through die-hard supporters of the unfettered right to sue, such as Graham Steele, a staff attorney at consumer watchdog group Public Citizen.

"It makes you a little wary," said Steele.

If liberals are worried, however, conservatives should be terrified. Whether Obama or McCain wins in November, tort reform appears dead in Washington for at least the next two years. A catchall phrase for legislative measures designed to make it harder for individuals to sue businesses, tort reform has long been a pet project of Republicans. Not coincidentally, it reduces the earning power of plaintiff lawyers, some of the biggest contributors to the Democratic Party.

Obama critics say his votes on legal issues have been carefully designed to create an image of evenhandedness that may disappear when he is in office. He voted for the Class Action Fairness Act only after it was clear it would pass, for example, and did so after voting for several Democrat-proposed amendments that would have gutted the bill.

"You have to think it was purely cynical politics, so he could point to it later," said Ted Frank of the American Enterprise Institute. "Nothing in his record indicates he cares about tort reform."

Obama's unsuccessful medical-malpractice bill, co-sponsored with Hillary Clinton, would have mandated a vast data-collection system to track medical errors. The data were supposed to remain confidential, but cynics say inventive malpractice lawyers eventually would get their hands on the information. And while the bill would have encouraged injured patients to negotiate a settlement rather than sue, there was no requirement that they do so.

Actuarial statistics also suggest the next president will nominate one and possibly two Supreme Court justices to join the court, now led by conservative Chief Justice John Roberts. The Democrats wouldn't reject even strongly liberal candidates, while the most McCain would be able get past Congress is an Anthony Kennedy-style moderate.

"Would McCain sign it? I think he probably would," said David Vladeck, a Georgetown law professor who is also a fellow at the liberal Center for Progressive Reform. "It's trying to restore a right to the American people."

But even Obama in the White House and a Democratic Congress won't satisfy consumer advocates like Public Citizen's Steele. When Congress decides to meddle with regulations and tort law, he said, it often does more damage than good. U.S. Sen. Charles Schumer, D-N.Y., is nobody's idea of a corporate shill, yet he has sponsored a bill to regulate the rent-to-own business that would trample some of the laws in more consumer-friendly states, Steele said.

"We'd like to see a President Obama not go with more moderate Democrats and ones that are closer to certain industries," Steele said.

The chances of former Sen. John Edwards becoming attorney general have dimmed since he confirmed on ABC News persistent tabloid reports that he had an affair with a one-time campaign employee.

"We can't imagine a more nightmarish scenario," said Darren McKinney, spokesman for the American Tort Reform Association. "Defcon One would have been our man Johnnie Edwards in the AG's office."

 
read the whole article here -

http://www.forbes.com/business/2008/08/08/obama-mccain-torts-biz-beltway-cz_df_0811torts.html

I'm not sure about the Defcon reference to Edwards, but it must be important.