Maureen Martin Senior Fellow

Welcome to The Heartland Institute’s Law Issue Suite, a place where all the resources related to legal reform and other legal issues on Heartland’s Web site are brought together and made easy to access.

To the left of this essay are links to Lawsuit Abuse Fortnightly, a biweekly newsletter documenting cases of lawsuit abuse by unscrupulous plaintiffs’ trial lawyers; amicus briefs filed recently by Heartland; comments filed by Heartland in opposition to legal regulation of carbon dioxide and other greenhouse gases by U.S. EPA under the Clean Air Act; contact information for experts on legal affairs who work with Heartland; and a comprehensive directory of organizations in the U.S. that support legal reform, the rule of law, the separation of powers, and restrained judging.

Below those links is a “What’s New” feature that presents titles, short reviews, and links to research and commentary on legal issues most recently posted on Heartland’s Web site. This list is continuously updated, so we hope you’ll check it regularly.

Under those links is a list of subtopics that appear under the “Law” topic in PolicyBot, the database and search engine that resides on The Heartland Institute’s Web site. You can click on any one of those subtopics and see the titles, authors, date of publication, and short reviews of credible research and commentary from a wide range of sources. Then just click to open and read the entire article. PolicyBot is free, easy to use, and fast.

The essay below presents an overview of the important legal issues in the U.S. today. It contains links to individual articles and subtopics in PolicyBot, so the reader can go into further depth on the issues the author addresses.

What Is the Rule of Law?

The rule of law is fundamental to individual freedom, free markets, economic prosperity, individual prosperity, and personal achievement. Without legal certainty, businesses cannot operate. When settled expectations, reached through contracts freely bargained for at arm’s length, can be upset or frustrated through out-of-control judges and legislatures intent on government takeover of private affairs, our economy cannot survive.

When unscrupulous plaintiffs’ lawyers, enabled by state attorneys general, legislatures, the federal government, and activist judges, expand settled legal theories into new, novel, and legally insubstantial waves of litigation, and expand the role of government in unwarranted ways never intended by lawmakers, all of us pay the price. Everything--food, clothing, other goods, services, housing, energy, health care--costs more. (Jackpot Justice; Tort Law Tally).

The stability of every institution in America--from churches to schools to hospitals and youth groups--is threatened by litigation. Entrepreneurial creativity is stifled, and job security can be erased by a single frivolous lawsuit with legal expenses that can wipe out businesses in months even if the suit eventually fails. (Judicial Hellholes)

Lawsuit Abuse

Out-of-control lawsuits are bankrupting businesses, undermining the rule of law, and making the idea of personal responsibility little more than a bad joke. This is a grave threat to our standard of living and to freedoms and legal protections we all cherish. Thousands of good doctors are being forced to limit, relocate, or abandon altogether their practices. Companies that never manufactured or even used asbestos are being bankrupted by judgments that reward people who aren’t even sick and never become sick, while those who are sick, or their surviving families, are unable to get compensation at all. Fraud abounds in asbestos litigation, and some unscrupulous plaintiffs’ lawyers are filing claims for duplicate plaintiffs against manufacturers of both asbestos and silica even though it is virtually impossible for a single claimant to have both asbestos-related and silica-related disease.

Manufacturers of guns, lead paint, tobacco products, alcohol, cars and trucks, and even soda and fast food are all facing legal action waged by unscrupulous trial lawyers seeking huge awards based on flimsy legal theories. Long-standing legal doctrines of liability and standing in court have been overturned, setting the stage for a feeding frenzy by the plaintiff’s bar.

Environmental groups sue corporations and the government in the names of endangered species and global warming. Gays, feminists, ethnic minorities, and the disabled sue for special accommodation of their needs and wants. Parents sue when their children don’t do well in school, or when they are punished for misbehaving.

Out-of-control litigation threatens virtually every institution in America, from its churches to its schools, from farms to factories, and from local Boy Scout troops to the office of the U.S. President. The annual cost of lawsuit abuse in the U.S. is estimated to be thousands of dollars per household.

Public Nuisance

The most flagrant examples of abusive, frivolous litigation are the public nuisance cases brought by unscrupulous plaintiffs’ trial bar lawyers against a wide array of legitimate businesses, including tobacco companies, paint manufacturers, gun makers, Wall Street stock brokerages, and electrical generating plants. Such cases also have been brought against oil companies claiming their products cause global warming, which is said to be a public nuisance.

Public nuisance is defined as anything that unreasonably interferes with the use and enjoyment of property. Legal scholars say it is an extremely vague legal concept: “It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” That, of course, makes it a perfect theory for the plaintiffs’ trial bar, which have used it to attack lawful businesses. It’s particularly attractive because there’s no statute of limitations. The suits against paint companies--based on paint sold as long ago as 100 years--have been largely unsuccessful, but one brought against electrical power generator the Tennessee Valley Authority succeeded at the trial-court level. The case is now on appeal.

Climate Change

Heartland has been at the forefront in fostering the dissemination of sound science on global warming and climate change.

• Heartland Environment Suite

• Global Warming Facts

• Climate Change Reconsidered

• First International Conference on Climate Change, March 2008

• Second International Conference on Climate Change, March 2009

• Third International Conference on Climate Change, June 2009

• Fourth International Conference on Climate Change, coming May 2010

As EPA embarks on the path to regulating greenhouse gas emissions from new motor vehicles, which will trigger a cascade of regulations on nearly every aspect of American life, legal aspects of the global warming debate take on additional importance. Because Heartland has devoted substantial resources to publishing and fostering the dissemination of sound science on climate change, it has been submitting this information to EPA and the courts in administrative rulemaking and litigation on this important issue.

Heartland filed comments in 2008 in EPA’s Advanced Notice of Proposed Rulemaking, in which EPA laid the groundwork for regulation of every potential emission source of carbon dioxide and five other greenhouse gases, from weed-whackers to restaurants to the corner bakery to large coal-fired electrical power plants. Heartland argued EPA was violating the law requiring such regulation be based on sound, unbiased, recent science of the highest quality by ignoring the substantial body of peer reviewed academic studies demonstrating global warming is not man-made and is not a crisis.

Heartland also published numerous other comments submitted by other organizations.

Heartland also submitted comments in 2009 opposing regulation of carbon dioxide and five other greenhouse gases from new motor vehicles, making various legal arguments -- as did numerous other organizations -- and submitted Climate Change Reconsidered, a compendium of thousands of peer-reviewed scientific academic articles challenging the notion that climate change is a man-made.

Gun Control

Data show that when gun ownership rises, crime decreases. This has been painstakingly documented in states across the nation. The police have no duty to defend citizens and, in many urban areas, the police are stretched too thin to promptly answer calls.

The U.S. Supreme Court ruled in 2008 that a gun control ordinance passed by the District of Columbia, a federal enclave, was unconstitutional under the Second Amendment to the U.S. Constitution. This ruling came with input from Heartland in the lower court (Heller District Court Heartland brief) and the Supreme Court.

That case left unresolved the issue of whether gun control ordinances in states are barred by the Second Amendment. A case presenting that exact issue, arising from ordinances in Chicago and Oak Park, Illinois, is now before the Supreme Court.

Libertarian Legal Principles

Significant events in government relating to law and the judiciary often provide opportunities to educate the public about important legal principles, including construction of provisions of the U.S. Constitution that are faithful to original intent; the limited role of the federal government as established in the Constitution, with all powers not vested in federal government reserved to the states; federal preemption; and abusive government regulation.

The indictment of Illinois Gov. Blagojevich provided an opportunity to educate about separation of powers and the over-reaching of federal criminal law enforcement at the expense of state police powers. It also led to a call by the Cook County state’s attorney for more powerful laws, when sufficient laws are already on the books.

The nomination of Judge Sonia Sotomayor to the United State Supreme Court provided a framework for discussion of affirmative action. Passage of the stimulus bill pointed to the complexities and vagaries of the legislation, its implications for the practice of law, and the privacy invasions in a portion of it mandating the creation of computerized medical records for each individual in the United States.

Other Resources

The Heartland Institute is not alone in providing information on important legal issues. The following sources also blog on the issue and provide research, publications, studies, newsletters, and commentaries:

American Enterprise Institute Legal Center for the Public Interest -- AEI’s Legal Center for the Public Interest was formed in September 2007, when the National Legal Center for the Public Interest merged into the American Enterprise Institute. The AEILC program on legal and constitutional studies includes conferences, studies, publications, research monographs, and books.

American Tort Reform Association -- ATRA works toward enactment of state and federal laws “working to bring greater fairness, predictability and efficiency to America’s civil justice system” through public education and enactment of legislation. It has affiliated state-based liability reform organizations in 40 states. Its mission includes health care liability reform, class-action reform, promotion of jury service, limits on punitive damages, limits on product liability reform, and sound courtroom scientific evidence.

Cato Institute -- Cato works to increase the understanding of public policies involving libertarian principles of limited government, free markets, and individual liberty. Cato’s constitutional scholars address a variety of issues, including federalism, property rights, civil rights, criminal law and procedure, and asset forfeiture. These issues involve substantive law areas such as banking law and regulation, campaign finance, constitutional studies, environmental law and regulation, law and economics, and gun control.

Center for Class Action Fairness -- Ted Frank, former resident fellow at AEI, is founder and president of the Center for Class Action Fairness, formed in 2009. CCAF actively represents objectors to unreasonable class-action settlements, such as those brought as a pretext to reward plaintiffs’ lawyers while awarding minimal recoveries to plaintiffs.

The Federalist Society for Law and Public Policy -- Members of the Federalist Society are conservatives and libertarians who promote public awareness of the principles “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” It works to achieve recognition of the importance of these principles among lawyers, judges, law students, and professors.

The Goldwater Institute -- Goldwater is a government watchdog, focused on Arizona. Through its Scharf-Norton Center for Constitutional Litigation, it protects fundamental rights through litigation against government over-reaching. It represents the indigent to protect and enforce their fundamental constitutional rights in areas such as fiscal responsibility, school choice, and property rights.

Institute for Justice -- IJ was founded in 1991 as a civil liberties public interest law firm. IJ litigates and educates the public “on behalf of individuals whose most basic rights are denied by the government--like the right to earn an honest living, private property rights, and the right to free speech, especially in the areas of commercial and Internet speech.” IJ challenges “the government when it stands in the way of people trying to earn an honest living, when it unconstitutionally takes away individuals’ property, when bureaucrats instead of parents dictate the education of children, and when government stifles speech.”

The Manhattan Institute -- The Manhattan Institute works to foster economic choice and individual responsibility, supporting research on the legal system. Its Center for Legal Policy communicates information on legal reform through books and articles in newspapers, magazines, and academic journals. It and its fellows also manage online resources on the U.S. legal system: PointofLaw.com, TrialLawyersInc.com, and Walter Olson’s OverLawyered.com.

U.S. Chamber Institute for Legal Reform -- Represents the U.S. business community to make “making America’s legal system simpler, fairer and faster for everyone.” It works for federal and state legislative reform, voter education, public education, and grassroots activities. Among its reform activities are to build public support, build alliances with other reform groups, eliminate frivolous lawsuits, and enforce legal ethics.