Law Prof Says 'Perfect Storm' of Wins by Democrats Could Expand Tort Liability
A law professor is warning that a big win for Democrats in Tuesday’s elections could lead to an expansion of tort liability that will harm businesses.
Lester Brickman of the Benjamin N. Cardozo School of Law at Yeshiva University talked about the possibility in an interview with the Wall Street Journal.
“The impending election portends a perfect storm that will engulf business interests,” Brickman told the newspaper. He said Democratic wins could result in the “most significant enlargement of tort liability since the 1960s.”
The newspaper spelled out the scenario: Barack Obama wins the White House, and Democrats take 60 seats in the Senate, giving the party the ability to block Republican filibusters. As a result, new legislation passes that ends mandatory arbitration in consumer contracts and bars use of the federal pre-emption doctrine to shield companies against state court lawsuits.
A pre-emption case being heard today in the U.S. Supreme Court asks whether federal drug-labeling law bars a woman’s lawsuit for a drug company’s failure to warn about the potential risks of improperly administering an anti-nausea drug. If the court sides with corporate interests, consumer groups hope to overturn the decision through legislation. In another pre-emption case, the Supreme Court ruled last year that pre-market approval of medical devices by the Food and Drug Administration bars injury lawsuits by those who say they were harmed by the products.
The story points out that Barack Obama hasn’t always voted with consumers on tort reform issues, and John McCain hasn’t always sided with business. Obama was one of 17 Democrats who voted to force more class action lawsuits into federal courts, which are perceived as less consumer-friendly. And McCain was one of four Republicans who voted against a bill to curb securities lawsuits by investors. But consumer groups believe they have an ally in Obama, the article says.
