Tort Deform

Memo to the Netroots: Post FISA Progressive Blogging & Civil Justice

Kia Franklin — Mon, 21 Jul 2008 17:56:06 -0400

Even as we recover from the heavy blow of losing the legislative fight against FISA protections for spying telecoms, last weekend and other occasions have me reflecting about the battle for what Obama (ironically) calls our "progressive future," how it is far from finished, and how blogging can be a powerful weapon of choice for those on the frontlines. But we have got to remain serious about our work. Our momentum can't ebb and flow as we lick our wounds and wait for another FISA.

This isn't a rant. I've got a few ideas about how we can keep our tanks fueled (ugh--please excuse the sickening reference to that other topic we love to discuss).

As a follow up to the NN panel I organized--on the right's agenda for tort "reform" and why our civil court system should be a top priority to progressive bloggers, especially in the aftermath of the grueling FISA fight--here's my companion memo about continuing this conversation beyond the convention.

An emergency kept me from getting to Austin, but I hear the panel went really well. (I will put up a link to video and related blogposts from panelists when they become available). Since I was unable to attend, I wanted to contribute to the continued dialogue the panel intended to generate by making the following simple argument: progressives must write more frequently and organize more readily around civil justice issues.

Why and how should we do this? Glad you asked.

1. Why?

Because it's important! In his video-address to the Austin NN Convention, Barack Obama commended the progressive blogosphere for its ability to work effectively around the important issues. Observing the promise of using online platforms to build the progressive movement, he said:

“This is one of those moments in our history when we have a chance to create a real grassroots movement and lay the groundwork for a lasting progressive future.”

In order to lay the groundwork effectively, progressives have to be able to articulate what we believe in and what our blueprint will be for change to achieve those ideals.

The FISA fight is a good case in point for how successfully we can do this. Mass organizing around FISA showed us that progressive Americans feel passionately that they deserve legal protection and adequate recourse when their rights are violated. We believe it is important to be able to curb corporate abuse and governmental neglect and to achieve redress when someone else does us unreasonable, illegal harm. The FISA issue is just one part of a larger set of issues related to access to the courts and our civil justice system. As an important part of a progressive vision for society, we have to continue paying attention to issues that affect our access to the courts.

2. How?
I've written a memo on how progressive bloggers can continue taking on pressing civil justice issues and inspire grassroots organizing around them. The Memo to the Netroots on Civil Justice discusses how to get progressive bloggers more involved in this conversation and in offline strategizing to achieve access to justice for ordinary Americans.

In short, the memo provides links to more than a few really excellent progressive blogs that discuss the fight for civil justice (disclaimer: the list is just a start); presents some simple steps we can all take get progressives to pay more attention to what is happening in the courts; reflects upon our uphill challenge against the corporate industry's effort to weaken our legal rights; and surveys ideas for enriching the dialogue with more factual information about tort "reform" when the mainstream media will not.

The memo also makes the case that this work must be done right now, while we are in the middle of a critical election year and while our economy (unfortunately) provides us with countless examples of why it's important to curb corporate power and protect the legal rights of ordinary, hardworking citizens.

I'd be grateful for any comments on the memo, questions about why I wrote it, or additional suggestions for bloggers interested in getting involved in this type of advocacy. And if folks want to get even more involved in the debate, they can join the daily discussion of civil justice issues on TortDeform.com and the other civil justice blogs referenced in the memo.

Lessons Sen McCain has learned from Pres Bush

Kia Franklin — Thu, 08 May 2008 16:11:48 -0400

Sen. John McCain has officially earned an A in Prof. Bush's course on Tort Reform Tropes, 101. Maybe that's why they're embracing in this photo (source).

The Senator and presumed Republican party Presidential nominee spoke in Rochester, Mich., the other day. (Thanks, Matt at ThinkProgress, for pointing out and analyzing McCain’s statements and his track record on women's rights).

According to the Washington Post:

Although the Michigan audience was largely supportive, cheering McCain's pledge to provide easy health care access for veterans, the meeting started out with a few tough questions. McCain singled out a 14-year-old girl who questioned why he opposes eliminating the statute of limitations on lawsuits over workplace discrimination, arguing it amounted to opposing "equal rights for women."

"If you eliminate the statutes of limitations, and you make it unending, you may be violating the rights of the individuals who are being sued, whether they're a man or a woman," the senator responded. " I don't think you're doing anything to help the rights of women, except maybe help trial lawyers and others in that profession." (My emphasis added)

Haven't we heard this before? It's déja-vu all over again. McCain is using the same tactics Bush used to get elected: when in doubt, blame the trial lawyers.

When faced with a tough question about why people are being denied access to justice, say it's because that's the only way to stop the trial lawyers. Oh, and this will work no matter how inherently flawed, inane, or even insane your argument is at its substance. And for good measure you can sprinkle in some references to "evil in this world" to appeal to peoples' morals, thus creating the inference that all of your political stances are directed at combating that evil.

McCain's appeal to the breached rights of individual employers is strained from the start. First, the law does not create an unending statute of limitations--it clarifies that the statute starts running afresh with every new discriminatory act, such as the issuance of an inequitable paycheck based upon discrimination. Second, the defendant in employment discrimination claims is often a corporation and not an individual.

But even in cases in which the defendant is an individual, what is the right which McCain asserts is being violated? Is it the right not to be sued for discriminating against someone without getting caught within 180 days, even if you then discriminate over and over again after the 180 days are up? Even if it can be more cleverly articulated than this, does McCain really think one can compare the obstruction of some unsavory interest in evading responsibility to the infringement of a highly cherished right not to be victimized by discrimination and economic injustice? That's ridiculous.

So, McCain's not smarter than a twelve year old... but neither was Bush, and he got elected. The rhetoric works.

The "trial lawyers are evil" mantra addresses none of the values McCain touted in his speech to the Michigan audience. He told supporters that "evil still exists in the world" and "assails the great, animating truths we believe to be self-evident -- that all people have a right to life, liberty and the pursuit of happiness -- by subjecting countless human beings to abuse, persecution and even slavery." He observed that the "failure to [confront this evil] affects even those who are complacent with our own blessings and secure in our human rights," and pointed to this country's founding "belief in the inherent dignity of all human life [which] can only be preserved through shared respect and shared responsibility."

Of course that sounds great, but a true belief in those words would require McCain to recognize that discrimination is a form of persecution, and that the court system is a way for individuals to demand the "respect we are morally obliged to pay each other." As someone unlikely to face workplace discrimination, he would nonetheless feel called to confront the evil of discrimination and economic inequity. And his call for "shared respect and shared responsibility" would compel him to acknowledge the assault to human dignitiy that is an unvindicated act of discrimination.

But it appears as though McCain has learned from Bush that matching your professed values with the political decisions you make would be no good at all. After all, It might help the trial lawyers.