Class action: “Proposed Law Could Be a New Attack on Civil Rights”

Source: Proposed Law Could Be a New Attack on Civil Rights – The New York Times

I’m a big fan of class action, because it gives a kind of union power to otherwise powerless individuals who join together to sue a large entity, a corporation, say, for acting in ways that have harmed those individuals.

One or two individuals do not have the wherewithal to sue immensely wealthy corporations and their armed phalanxes of corporate lawyers. But a united class of individuals does.

Although I’m sure they don’t want to see it this way, it’s the unmitigated power of corporations–to remind us all, the purpose of a corporation is making a profit, not social welfare–that have produced the necessity for regulation. If a corporation has been dumping coal residue waste into a stream from which people draw their drinking water, it must be punished, right? And then it must be controlled by a regulation that says “You can’t dump coal residue waste into water.” (We had such a regulation, do you remember? You only have to go back as far as a month or so, when…well, you know.)

This is why we have regulations. I mean, it’s why we have had regulations–although the corporate oligarchy now running our country is doing its damnable best to demolish these regulations. Regulations are written and applied because corporations are amoral, i.e., profit-driven, and do not pay attention to the social welfare of us individuals.

When the Republicans in Congress–why is it always Republicans?–try to legislate class action out of existence, they act against us as individuals and for the power of already too powerful corporations.

(A certain amount of my thinking time nowadays is wondering how long it will take a rational government–when once we have one again–to dismantle this awful dismantling.)

Anyhow, here’s how this distressing New York Times piece begins:

A chilling little bill is working its way through Congress. It could have the effect of ending the class action as an American institution.

The legislation, the Fairness in Class Action Litigation Act, passed the House last week. If it becomes law, it will be one more perverse disservice to the working class who are said to have driven the 2016 election, because the main losers will be ordinary Americans.

In February, the chairman of the House Judiciary Committee, Representative Bob Goodlatte, Republican of Virginia, announced the proposed legislation in Orwellian terms, as a bill to “improve access to justice for American consumers.” He pushed it through the committee on a strict party-line vote only six days later, without a hearing, even though it is much longer and more complex than the bill that passed in 2016. The bill is such a mess that some experts say its main effect will be protracted litigation over its meaning.

The curious thing is the degree to which average Americans have been convinced that lawyers, and the law that is there to protect them, are their foes. Proponents of bills like the Fairness in Class Action Litigation Act stress the small individual recoveries class actions sometimes generate, the large lawyers’ fees and anecdotes that make lawsuits seem ridiculous, like the famous, though misrepresented lawsuit over McDonald’s coffee.

That is all quite misleading and it is a shame. If Congress kills the class action, many laws protecting ordinary people will become unenforceable. Nobody would pay a lawyer to bring most individual cases under our antifraud, product safety, antitrust, civil rights or employment laws, for example. The individual harm is usually small, though the policy is crucial and the overall social injury may be in the hundreds of millions of dollars.

And, indeed, so far from being a “fairness” measure to aid “consumers,” the legislation would crown a decades-long campaign of the United States Chamber of Commerce and other business interests, abetted by an increasingly conservative Supreme Court and Republicans in Congress, with no goal but to make consumer class recoveries impracticable.

Here’s the info about the two authors of this opinion piece: Chris Sagers is James A. Thomas Distinguished Professor of Law at Cleveland State University, where he teaches antitrust law. Joshua P. Davis is associate dean for academic affairs, director of the Center for Law and Ethics, professor, and Dean’s Circle Scholar at the University of San Francisco School of Law, where he teaches civil procedure, complex litigation and other topics.

That is, they know the facts, they know what they’re writing about.


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