DAN QUAYLE may be gone from the political scene but one of his
favorite issues - reforming the nation's legal system - remains on
Much of the action recently has been on the state level. With
King Kong-sized medical-malpractice and product-liability judgments
getting wide publicity, most legislatures have passed some form of
"tort reform" since the late 1980s.
More than two dozen states have changed "joint and several
liability" rules, which have been used to force wealthy plaintiffs
who were only minimally responsible for some harm to pay almost all
of the jury award. Another 21 states have changed the "collateral
source" rule, which says that juries may not consider evidence
that a plaintiff's losses have been compensated from another
Since the 1980s, the focus of the tort-reform movement has
shifted to other concerns: limiting awards for punitive and
noneconomic damages; reining in medical-malpractice judgments;
limiting the testimony of "expert" witnesses; and establishing
clear guidelines for product-liability cases.
Despite stiff opposition from trial lawyers and self-styled
consumer groups like Ralph Nader's Public Citizen, the
business-backed tort-reform movement persuaded several more states
- Arizona, Mississippi, North Dakota, and Texas - to jump on the
bandwagon last year.
This year, state legislators in New Jersey are expected to pass
a major tort-reform package, while Massachusetts lawmakers appear
set to approve a product-liability law. Battles may also be brewing
in many other states, including California, one of the biggest
centers of personal-injury litigation.
What accounts for the relative success of the tort-reform
Obviously, it received a big boost from former Vice President
Quayle, who made lawyer-bashing a big part of the 1992 presidential
campaign. But tort reform may actually be seeing more success since
Quayle left office, because the issue now carries fewer partisan
overtones for Democratic legislators.
Opponents of legal reform credit the business community, led by
the American Tort Reform Association (ATRA) in Washington, for
mounting a successful public relations campaign across the country
to convince most people that the legal system is in need of
"They've made a real dent," says Barry Nace, president of the
Association of Trial Lawyers of America (ATLA). "If you keep
saying something loud enough, sooner or later people will believe
ATRA's message has been boiled down to a slogan - "Lawsuit
Abuse! Guess who picks up the tab?" - that has appeared on print
advertisements, TV commercials, and bumper stickers. The group has
even posted its ads aboard buses and subways in several cities,
including Philadelphia and Fort Lauderdale, Fla., which, those
transit systems say, has led to a drop in claims against them.
Perhaps the most effective tactic of the tort-reform forces has
been "deep lobbying" - attempts to change the political climate,
not to pass specific legislation. Business groups have paid for
studies and books outlining the high cost to the economy of runaway
litigation. Two of the most successful pro-reform books were
written by Peter Huber and Walter Olson, fellows of the free-market
Manhattan Institute in New York. Thanks in part to their efforts,
public opinion surveys show most Americans now favor overhauling
the legal system.
But while the tort-reform movement has enjoyed success at the
state level and among the public, it has been stymied in Congress.
A major reason why is the political power of ATLA, the trial
lawyers' lobby. In the 1991-92 campaign cycle, for instance, ATLA
gave a whopping $2.4 million to candidates for federal office, 90
percent going to Democrats.
While that giving pales against the contributions of the
business community, ATLA has a key advantage over its adversaries:
Large corporations and their trade associations are concerned with
a variety of issues. …