Al Smith - November 01, 2005
Montana Trial Lawyers Association
States' Rights Conservatives
KUFM Commentary - November 1, 2005
Al Smith, Montana Trial Lawyers Association
States’ Rights Conservatives?
It has been a strange last couple of months in Washington DC. I know most
people get overwhelmed with all the flak coming out of DC, and sometimes I
think it is the result of a conscious effort to drive us to throw up our
hands in disgust and despair. Then we won’t be aware that our rights are
being sold off to the highest corporate bidders in DC. It’s hard enough to
know when you are being bilked by the street con game of three card Monte,
it’s almost impossible to stay abreast of the corporate con game in DC of
thousand card Monte.
Virtually all the discussion of the Supreme Court nominations - whether it
was Roberts, Miers or now Alito - has been about social litmus tests,
primarily abortion. What has been lost in the debate is that each of the
nominees has a record of supporting ever more expanding corporate power
over our lives. Either by limiting how much our elected officials can
regulate corporate actions, or by limiting or eliminating the ability of
individual citizens to hold corporations accountable and responsible for
the harms they cause.
That these nominees would reflect the corporate views held by the
Republican establishment they have worked with and for over the past
several decades is not surprising. What should be surprising is that
so-called conservatives, especially those that fervently mouth support for
states’ rights, are silent on these issues during the discussion of these
nominees.
Then again these same conservatives have been either silent on, or
supportive of, legislative and regulatory action that runs contrary to
their supposed principles. Let me give you just a couple of examples.
Earlier this year Congress passed and the President signed a Class Action
bill. The bill essentially federalized class actions, limiting or
eliminating the ability of states to regulate corporate conduct in their
state courts when their citizens are the victims of corporate greed. For
example, financial companies that bilk thousands of Montana citizens can
rest assured that they can move any class action lawsuit against them out
of Montana’s state courts and into federal court, and very likely a federal
court not even in Montana. Nary a whimper from states’ rights conservatives.
In August, the Administration took a different approach. The National
Highway Traffic Safety Administration (NHTSA) announced a proposed
administrative rule for new roof crush standards for automobiles. Never
mind that the standards were written by the auto industry and their agents
in NHTSA. Never mind that the standards do little to actually protect
citizens from known safety hazards that account for 6,000 to 7,000 deaths
each year. Never mind that the industry has known about a clear link
between roof crush and severe injury since the 1960's, yet they continue to
lobby for and get standards that fall well short of what they can do to
protect consumers.
No, the real kicker is that a part of the proposed rules would prevent
state courts from holding corporate manufacturers accountable for their
failure to provide safe vehicles. NHTSA has set safety standards for
years, usually only after the auto manufacturers have agreed to the
standards, and often, only after they have been repeatedly sued in state
courts for failing to take reasonable and feasible steps to market a safe
vehicle.
Corporate auto makers have been very successful at convincing NHTSA of
their point of view. Maybe the revolving door of working at NHSTA, then
working for the corporate auto makers, then working for NHSTA again and so
on, has something to do with that. They have been less successful,
however, in convincing juries in state courts that they should not be held
accountable for injuries and deaths that could have been prevented with
reasonable and feasible safety modifications.
The proposed roof crush rule takes care of that. It specifically prohibits
state court actions if the vehicle meets NHSTA standards. The state’s
rights conservatives not only haven’t objected to this federal intrusion
into our state courts, they have voiced support for it.
Last week the U.S. House of Representatives passed H.R. 420, a bill that
would limit where an injured consumer can file a lawsuit. And it prevents
some foreign corporations who sell unsafe products from being held
accountable in U.S. courts.
Under current law, an injured family can sue a foreign manufacturer that
makes a defective or dangerous product wherever there are sufficient
contacts between that company and the jurisdiction – such as where the
product is imported into the U.S. or where it is sold. This bill would
require a suit be brought not where there are contacts – but where the
corporate defendant’s principal place of business is located.
Suppose a corporation based in China makes defective cribs and they are
sold in Montana. If a Montana family buys that crib and the defective crib
collapses killing their child, that family would likely have to go to China
to file a suit, and could not sue in Montana, because under the bill the
proper venue is where the defendant corporation’s principal place of
business is located.
This provision is to prevent so-called forum shopping - filing or moving
lawsuits to jurisdictions where the party believes they have the best
chance of success. Call me guilty of forum shopping, but I would want to
file a lawsuit on behalf of a Montana family in Montana, not in China.
A prime supporter of HR 420 was Tom Delay - the same Tom Delay who wants to
move his corruption trial to a county and court in Texas where he thinks he
has a better chance of success. Forum shopping is bad for Americans
injured by corporations, but it’s OK for Delay, a so-called states’ rights
conservative.
This is Al Smith for the Montana Trial Lawyers Association.
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