The Politics of Litigation May Be Changing

Is suing a Democratic thing or a Republican thing? It used to be a Democratic thing, then it became a Republican thing, and now it’s a Democratic thing again. Or maybe it’s the other way around. Anyway, the politics of litigation have become confusing in an interesting way.

On Friday Gov. Gavin Newsom of California, a Democrat, signed a gun-control measure that provides a minimum $10,000 award to residents who successfully sue makers and distributors of illegal guns.

The California law is patterned on a Texas anti-abortion lawenacted last year that also enlists the help of citizen lawsuits. Texas promises successful plaintiffs “not less than $10,000 for each abortion” they successfully sue over, as well as reimbursement for their legal expenses.

So now we have the two most populous states — one blue, one red — adopting the same technique of harnessing citizen lawsuits to advance social agendas.

For most of the past 40 years, it was mainly Democrats who used the courts to force change on social issues such as civil rights and to punish corporations that harmed consumers. But as the Texas anti-abortion law goes to show, on the social front, that has begun to change.

“Over the last eight years of our data, we document escalating Republican Party support for private lawsuits to implement rights,” two law professors, Stephen Burbank of the University of Pennsylvania and Sean Farhang of the University of California, Berkeley, wrote last year in an article called “A New (Republican) Litigation State?”

Burbank and Farhang wrote that “this surge in Republican support for private lawsuits to implement rights was led by the conservative wing of the Republican Party.” Farhang, in an interview, said, “Now that conservatives are harnessing it for their purposes, many liberals are describing it for the first time as unseemly, as vigilante justice.”

“Earlier uses of private enforcement were to empower individuals to challenge governmental and corporate power,” Farhang added by email. In contrast, he wrote, “Some more recent conservative uses are novel in that they target vulnerable individuals, like pregnant women seeking an abortion or transgender persons.”

As opposed to lawsuits over social issues, suing corporations is still mostly a Democratic thing. Trial lawyers make most of their political donations to Democrats. The Republican Party is on record favoring “tort reform,” which it says is intended to save money for consumers by protecting corporations and other defendants from frivolous lawsuits. In 2005 President George W. Bush signed a law that was passed with mostly Republican votes, the Class Action Fairness Act, that makes it harder for plaintiffs to “shop” for the most favorable courthouse by moving more of the suits to federal court. In 2017, Vice President Mike Pence cast the deciding vote to strike down the ability of Americans to file class-action lawsuits against financial institutions.

But there’s at least one conservative legal scholar who argues that suing companies was a Republican thing before it was a Democratic thing, and could once again be a Republican thing. Brian Fitzpatrick, a law professor at Vanderbilt University, made his case in a 2019 book, “The Conservative Case for Class Actions.”

Fitzpatrick wrote that Republicans used to understand that if class action lawsuits are suppressed, the only alternative will be more government regulation. For decades Republicans favored using the courts while Democrats leaned toward regulation. To many economists, a class action appears efficient: It’s a way to aggregate many small claims, each of which would not be worth pursuing on its own, into one big claim that is worth suing over.

In 1974, the libertarian economists Gary Becker and George Stigler wrote an article for The Journal of Legal Studies advocating privatization of law enforcement, a plan in which class action lawsuits brought by private individuals would play a key role. Democrats demurred. In 1978 Senator Edward Kennedy, Democrat of Massachusetts and a lion of the liberals, co-sponsored a bill that would have abolished small-harm class actions and replaced them with government regulation.

The parties began to switch positions in the 1980s. Republicans came to oppose class actions because it became clear that they were highly effective in enforcing laws that Republicans didn’t like. “Many of these Republicans say they would rather have the government enforce the law — not because they love the government, but because they know the government won’t enforce the law as much as the private bar does,” Fitzpatrick wrote.

In an interview on Friday, Fitzpatrick acknowledged that critics of class action such as the American Tort Reform Association have valid points. The group highlights frivolous lawsuits such as one saying the Subway sandwich chain deceived customers by selling “foot-long” sandwiches that were sometimes only 11 inches. In 2017 a federal appeals court threw out a settlement of the Subway case, calling the claim “utterly worthless.”

With a few reforms, though, class actions can be and should be an improvement over regulation as a way of disciplining businesses, Fitzpatrick said.

So maybe suing corporations is on the verge of becoming a bipartisan tactic, both a Republican thing and a Democratic thing. That would not be good for corporations, which are beginning to find themselves without a political home. Democrats dislike corporations’ power; Republicans increasingly accuse them of being “woke.”

“I feel like corporate America has a weaker place in conservative politics, in the Republican Party, than I’ve ever seen in my lifetime,” Fitzpatrick said. “They could be in real trouble.”