Whatever the future holds for federal legal reform efforts, the
debate was changed forever by the 104th Congress.
Coming into this historic Congress, concentrated legal reform efforts
had been underway for well over a decade. Often referred to as "tort
reform," the primary focus of these on-going efforts had been
federal reform of product liability law. Over the years reforms
had been sponsored by many congressional champions, and their efforts
had been supported by many private sector organizations. Nevertheless,
the consistent political and legislative reality was that the congressional
majority and especially key congressional leaders simply opposed
the proposed reforms. And, the congressional opponents to reform
were backed by the most powerful single-issue lobby in Washington,
the plaintiff's bar.
Then, in 1994, Republicans running for the House of Representatives
signed the Contract With America, promising that if elected to a
majority they would bring to a vote in the House a number of proposals
within the first 100 days of the 104th Congress. One of the provisions
of that Contract was "Common Sense Legal Reform." Briefly
summarized, the Contract called for a vote on product liability
reform, securities litigation reform, and an important series of
other reforms. So, when the public elected a Republican majority
in the House, the legislative realities for legal reform changed
dramatically. For the first time there was a majority that favored
reform. There were committee chairmen that were pledged to report
legal reforms from their committees.
In the opening days of the 104th Congress the provisions of the
Contract With America were introduced as legislative proposals.
"Common Sense Legal Reform" was divided into three legislative
proposals. Primary jurisdiction of the securities litigation reform
proposals was vested in the Committee on Commerce. Primary jurisdiction
for the other reforms was vested in the Committee on the Judiciary.
With the reality of a Congress that would consider legal reform
seriously came renewed interest in the substance of the reforms
under consideration. During all of the years that product liability
reform efforts had been held hostage by congressional supporters
of the plaintiff's bar, a significant evolution had been underway
in the nation's courtrooms. While product liability law continued
to be in need of substantial reform, the abuses of our legal system
had expanded into many areas outside of products litigation. With
the chance that this new Congress would consider legal reform seriously,
the enduring product liability supporters were joined by a broad
range of constituencies with interest in broad legal reform. Support
came from small businesses, the service industries, financial services,
non profit organizations, and even other parts of the companies
that had consistently supported product liability reform. The potential
for legislative action led to private sector support reflecting
the significant changes that had taken place in the nation's legal
system since product liability reform was first proposed at a national
As a result, within the first 100 days of the 104th Congress, the
House of Representatives passed and sent to the Senate several major
legal reform proposals. The legislation that included product liability
reform also included reform of joint and several liability and punitive
damages in "all civil actions."
While Senate procedures and makeup were less hospitable to legal
reform efforts, the fact is that the Senate debate in the 104th
Congress was much broader than it had been ever before. Importantly,
Senator Dole was the primary sponsor of expansionist efforts in
the Senate. With little hope of success and political wisdom arguing
that the senator/presidential candidate needed legislative wins,
the then Majority Leader sponsored the primary expansionist amendment
on the Senate floor. Senator Dole's amendment would have made the
Senate bill apply to "all civil cases" - not just product
liability cases. During the extended Senate debate on legal reform
the Majority Leader filed numerous cloture motions and pushed for
expansion until it was absolutely clear the needed votes could not
be gained. In the end, the Senate passed a product liability reform
proposal and eventually, faced with the situation in the Senate,
the House-Senate Conference submitted essentially a products liability
bill that was passed by each chamber and sent to the President.
Like the securities litigation reform legislation that had proceeded
it, the product liability bill was vetoed by President Clinton.
The plaintiff's bar pressed the White House hard on both proposals.
Congress overrode the veto on securities litigation reform, but
reformers could not gather the necessary votes for the product liability
bill. However, the fact is that the dynamics of federal legal reform
have changed during this Congress. The plaintiff's bar, despite
a massive campaign to preserve the status quo in securities litigation,
lost on securities litigation reform. And, new lines have begun
to emerge in what has historically been seen as the product liability
debate. Because of the debates in this Congress, light has been
cast on the broad range of abuses in our civil legal system. Small
businesses, non-profits, and many others have focused on the problems
and begun to understand that there are reforms that could restore
balance to the legal system. Many Members of Congress have begun
to develop a better understanding of the problems being faced by
businesses, school districts, municipalities, non-profit organizations
and many other citizens.
Whatever happens in this year's elections, the legal reform debate
will forever have been changed by the 104th Congress. If President
Clinton is re-elected, any effort during his remaining tenure must
recognize that the President is a reliable fail-safe for his strong
supporters in the plaintiff's bar. Without a major change in the
make-up of the 105th Congress, especially the Senate, significant
reforms will be highly unlikely. There would be little justification
for expending the resources that would be required to present President
Clinton a second opportunity to veto product liability legislation.
Of course the fight for reform necessarily would have to be waged
in order to keep the issue alive for the future, but creativity
in exploring new approaches to reform will be mandatory if any incremental
success is to be achieved with Clinton in office.
On the other hand, if Bob Dole should win the presidency, he certainly
will not be satisfied with a limited product liability proposal.
He has taken a position for broad reform and has made legal reform
an issue in his campaign. Dole has criticized the extraordinary
influence of the single-issue plaintiff's bar and, if elected, surely
would seek reforms at least as inclusive as those he sponsored in
Finally, the outcome of November's congressional elections will
influence heavily the future approach to federal legal reform. If
the Republicans remain a majority in the House, it would appear
that Henry Hyde, a strong advocate of broad legal reform, will remain
the chairman of the critical House Committee on the Judiciary. Tom
Bliley should remain the chairman of the House Committee on Commerce.
Together, these two chairmen provide a strong alliance for reform.
If the Republicans lose their majority, the Judiciary Committee
will be chaired by John Conyers of Michigan, one of the House's
strongest opponents to reform. The Commerce Committee would be chaired
by John Dingell who supports only very narrow changes in the status
quo. In the Senate, the Republican chair would continue to be Orrin
Hatch, a supporter of reform. On the Democratic side, due to retirements
and other committee assignments it is not clear who would take the
chairmanship. Among the candidates are Joe Biden, Ted Kennedy, and
Pat Leahy - none of whom would promise much opportunity for reform.
In the Commerce Committee, a Democratic majority would lead to Ernest
Hollings becoming chairman. Hollings is one of the Senate's most
outspoken opponents of any kind of reform.
For federal legal reform there is a lot at stake in the coming
elections. The 104th Congress has raised the awareness of the issues
and the problems that have evolved within our civil justice system.
The recent legislative effort has raised the bar of expectations
regarding what Congress can do to stem abuse and what will be considered
satisfactory reform. The current Congress has changed the debate
* Robert McConnell is a partner at Gibson, Dunn & Crutcher,