Trial Magazine
On The Hill
A Clean Slate
January 2019This month, the 116th U.S. Congress was sworn into office, with Democrats leading the House of Representatives and Republicans retaining control of the Senate. What does this mean for tort “reform” and your practice?
First, we are excited not to be playing a completely defensive game of fighting tort reform at every turn. We expect to work on bills that will improve the law for you and your clients.
Our highest priority is legislation to eliminate forced arbitration, but there also may be opportunities to work on more discrete areas of law such as increasing federal minimum insurance requirements for commercial drivers and legislation to help active duty military personnel and veterans. For example, legislation to eliminate the Feres doctrine, which prohibits active duty military personnel from bringing negligence claims against the federal government, would be a good start—it would provide a remedy for servicemembers injured due to medical malpractice in a noncombat setting.
Second, it’s great to be laser-focused, but we know from experience that we need to move our issues forward in the House while also blocking bad measures or amendments in the Senate—essentially playing offense and defense simultaneously. There are new House members who need a complete education on civil justice—not just on why we need to eliminate forced arbitration clauses but also the importance of jury trials generally, why separation of powers is important for a strong and independent judiciary, and why Congress must not preempt state statutory and common law remedies.
This foundational education will set up new members for voting correctly on civil justice issues throughout their tenure in Congress. AAJ advocates will spend some time getting to know the new members and their staff so that we can establish working relationships with all of them. AAJ members will be an integral part of this education, reaffirming core beliefs about the Seventh Amendment at town hall meetings, Lobby Days, and other opportunities to interact with your congressional delegation.
Third, even if we cannot get major legislation passed in a divided Congress, it is important to make the effort and make progress. The 2020 elections are just around the corner, and we want to set ourselves up for an even better Congress and a president who believes in the rule of law and supports the civil justice system.
Pack your patience. Whenever the House flips, it takes time to run at full steam. Offices are moved, and the new members must hire staff. During the first weeks, there are a few priorities, including oversight and investigations, that will occupy the attention of some members, including the ranking members of several committees.
Talented committee chairs. AAJ has long-standing and close ties with the members now holding the gavel on committees with jurisdiction over legislation important to us. Rep. Jerry Nadler (D-N.Y.), taking the reins of the House Judiciary Committee, has a deep commitment to civil justice, and we will be working with other committee chairs too. For example, Rep. Peter DeFazio (D-Ore.) will become chair of the House Transportation and Infrastructure Committee, which needs to reauthorize the highway bill (Fixing America’s Surface Transportation Act) and wants to tackle an infrastructure bill—two measures that offer potential vehicles as well as traps to pass provisions of concern to AAJ members.
Looking ahead. Stay tuned for information about our advocacy programs and how you can get involved in Lobby Days. Tell us about any relationships you have with newly elected House members. We are excited to build relationships and move forward with a new crop of talented representatives. The old cliché is that the opposite of progress is Congress. We don’t see it that way at all.
Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.