Conservative Legislators and Courts Are Making Criminal Conduct Legal For Corporations

Conservative Legislators and Courts Are Making Criminal Conduct Legal For Corporations

At least 71 bills introduced in 2013 that make it harder for average Americans to access the civil justice system resemble "models" from the American Legislative Exchange Council, or "ALEC," according to an analysis by the Center for Media and Democracy, publishers of ALECexposed.org [3].

ALEC Agenda Tips the Scales of Justice to Help Corporations Win

For decades, ALEC has been a conduit for the oil, tobacco, and pharmaceutical industries to push legislation that changes the rules to limit accountability when a corporation’s products or actions cause injury or death -- such as when a Koch Industries pipeline explodes and kills teenagers [4], or when the tobacco or pharmaceutical industries withhold evidence that their products are dangerous. In just the first six months of 2013, seventy-one ALEC bills that advance these "tort reform" goals have been introduced in thirty states (see chart below).

“Each of these bills would weaken the legal rights of everyday people who are wrongfully harmed by a corporation or health care provider,” says Joanne Doroshow, Executive Director of the Center for Justice & Democracy, a group that works to protect the civil justice system and fight tort reform. “[The bills] are carefully crafted to provide relief and protections for the industries who wrote them."

A long-standing principle of American law gives a person injured (or whose family member is killed) by the fault of another the right to pursue justice and seek fair compensation in front of a judge and jury. An injury for which a person can sue is known as a "tort." Tort lawsuits are one of the few instances where an average American can stand on equal footing with a global corporation, make their case in front of a citizen jury, and demand justice. On a level playing field, consumers often win -- which is why corporate interests want to rig this centuries-old system to their benefit.

Tort cases are relatively rare -- they make up only six percent of the entire civil court caseload, and are declining -- but they are effective. Tort liability is why U.S. companies have stopped selling dangerous cribs that strangle infants and children's pajamas that catch fire.

The ALEC “tort reform” bills fundamentally alter the tort liability system by making it harder to bring a lawsuit or by limiting a jury's ability to award damages. The bills provide a way for ALEC corporations to escape responsibility for wrongdoing, help ALEC insurance companies limit payouts (and increase profits), and prevent Americans wrongfully injured or killed from receiving just compensation.

ALEC Bills Limit Corporate Accountability, Change Liability Rules

Some ALEC bills limit how much a corporation might have to pay for causing injury.

    The ALEC “Noneconomic Damage Awards Act” (versions of which were introduced in five states in 2013) limits the amount a jury can award to compensate a person for their diminished quality of life as the result of an injury.

    The misleadingly-named "Full and Fair Noneconomic Damages Act" (introduced in two states) limits the amount a corporation might have to pay to compensate a person for their pain and suffering.

    The “Phantom Damages Elimination Act” (introduced in two states) changes the rules so a person who paid health insurance premiums for years would recover less for their medical bills than a person who had no insurance: rather than placing the full cost of paying for medical bills on the wrongdoer, the bill would reduce the amount they must pay if a person's insurance company negotiated a discount.

Other ALEC bills change how liability is apportioned when more than one individual or corporation is at fault.

    Three states introduced versions of the “Comparative Fault Act,” which changes the rules so that “if a company is 49% responsible, they are completely off the hook,” Doroshow says.

    Two states introduced the misleadingly-named “Joint and Several Liability Act,” which actually eliminates the Joint and Several rule that has worked for many years and protects victims in situations where it is difficult to pinpoint which defendant is at fault -- such as when multiple companies may have manufactured lead paint -- or where one of the defendants is insolvent. The bill eliminates the rule that had established that after a jury finds a defendant substantially responsible, they can be required to fully reimburse a person for their injury.

Other ALEC "model legislation" would provide immunity for certain forms of lawsuits.

    Five states introduced the "Emergency Care Immunity Act," which provides immunity to emergency personnel who provide assistance, without compensation, at the scene of an emergency. Providing some legal protections for volunteers in emergency situations may be important, but Doroshow suspects the bill is primarily advanced "for PR purposes" to promote the notion that the tort system is broken.

    Ten states introduced the “Trespasser Responsibility Act,” which would largely absolve landowners from a responsibility to maintain safe premises, and tends to benefit large landowners like railroads, utility companies, and big agriculture. These large corporations would be absolved from their duty to act responsibly, and would be immune if a person accidentally wanders onto their property and are injured by poorly-maintained electrical boxes, dangerous chemicals or farm implements.

ALEC Corporations Reap the Rewards

The Trespasser Responsibility Act was brought to ALEC [5] by Matt Fullenbaum of the American Tort Reform Association and Mark Behrens of Shook Hardy & Bacon, a law firm that has long represented tobacco companies and other industries seeking to avoid tort liability. Behrens is an "advisor" to the ALEC Civil Justice Task Force, as are other Shook Hardy & Bacon attorneys. The head of Shook Hardy & Bacon is Victor Schwartz, the so-called "undisputed king of tort reform [6]" who for many years has chaired the ALEC Civil Justice Task Force.

Others involved with the Civil Justice Task Force include a variety of corporate trade groups that have worked closely with Schwartz and his law firm, such as the U.S. Chamber of Commerce and the National Federation of Independent Business, as well as the American Insurance Industry and others.

“Industries like the tobacco, insurance, oil and chemical industries are pretty detested,” Doroshow says, “and trade groups provide a way for these corporations to hide behind a more neutral-sounding entity that will push their agenda. This makes it harder for the public to learn how these detested industries would benefit from tort reform.”

[1] http://www.prwatch.org/
[2] http://www.alternet.org/authors/brendan-fischer
[3] http://www.alecexposed.org/wiki/ALEC_Exposed
[4] http://www.bloomberg.com/news/2011-10-02/koch-brothers-flout-law-getting-richer-with-secret-iran-sales.html
[5] http://www.commoncause.org/atf/cf/%7BFB3C17E2-CDD1-4DF6-92BE-BD4429893665%7D/civil_justice_35-day_mailing%20San%20Diego.pdf

Conservatives and libertarians don't just think corporations are human beings, they think they're super privileged human beings. As we all know, if most of us hurt someone or take something from them, we can be prosecuted. Hurting people and stealing are considered immoral acts when done by humans, though conservatives and libertarians don't think that applies when corporations hurt people and steal. This is the tyranny of feudal lords, not freedom. That is why anyone who objects to what ALEC, the Kochs and various conservative-libertarians are doing, is quickly labeled a commie or radical liberal. The people who oppose ALEC and this massive erosion of freedom by the conservative movement, are patriots.

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