Jeffrey Pfeffer, a columnist writing at CNNMoney.com, has a story titled “In Defense of Lawyers” that is worth reading. Pfeffer reviews some basic principles. We can’t accomplish much in this or any other society without relying heavily on each other. We trust that we'll each carry out the obligations we commit to perform. When we don’t fulfill those promises, it’s not uncommon or unforeseeable that others will be injured or suffer financial loss as a result of our actions. This bad behavior can be everything from failing to finish a home we agree to build, to running a red light and broad-siding another car, to refusing to pay insurance benefits, to manufacturing a product we know carries a significant risk of injuring someone.
What mechanisms do we rely on in our society to make sure 1) people are deterred from violating their commitments and meeting standards of care and 2) when contract or standards of care are violated, wrongdoers are held accountable for the losses they cause? There are two primary methods that are tried and true. One is to rely on government oversight and regulation. Think of the Food and Drug Administration, the Securities and Exchange Commission, and the Consumer Products Safety Commission as examples. Generally speaking, liberals are more likely to think positively about the role government regulation and oversight plays. The second important way we deter bad behavior and ensure accountability when contracts and conduct standards are violated is to open the courts to people who have been injured by that wrongful conduct and make sure remedies are freely available for injuries caused by defective products, broken promises and negligent behavior. Conservatives are traditionally more inclined to feel strongly about the role personal accountability must play in our society.
Of course, the two methods are not mutually incompatible. Highly functioning societies have both regulatory and civil remedy mechanisms that are strong and healthy. What makes no sense from a public policy perspective is what we’ve seen too much of in the past few years: sustained efforts to gut both our regulatory structure and to “reform” our civil justice system to make it more difficult for individuals who have suffered financial and physical loss to get access to the courts and obtain a meaningful remedy.
The efforts of special interest groups to strengthen the hand of corporations and insurers in their disputes with consumers have been persistent and largely successful over the past few years. We see it in executive orders that make no political or economic sense other than to make business interests less accountable, in the strengthened economic conservatism of the Supreme Court and in so many other venues.
ERISA is finding more and more company as an example of an area of law where the playing field is tilted against the interests of individuals and in favor of business entities. Those who continue to push the envelope in finding new ways to strip lawyers representing claimants of the tools they need to represent those individuals threaten the quality of our society in a very real way.