Oklahoma’s lawsuit-reform debate has sadly revealed that honorable and well-meaning public officials like Governor Brad Henry and Attorney General Drew Edmondson, when push comes to shove, side with the most reactionary elements of the trial bar.
But this year’s debate revealed a problem even more disturbing than opposition to legal reform. Mr. Edmondson has imported to Oklahoma a new model of the office of attorney general that is destructive both to the rule of law and to the welfare of the state.
Traditionally, there has been a bipartisan consensus on the role of the attorney general. He defends the state and state officers in court against lawsuits, defends the state’s criminal convictions on appeal, and provides legal advice to state officials and employees. In the words of a former attorney general of Maine, “For 200 years [attorneys general] defended the states in cases brought by outside parties.” The attorney general, as one would expect from a lawyer that represents the whole public, never envisioned his role as bringing and winning big-money lawsuits. Rather, the attorney general ensures that all laws are fairly and impartially applied in the service of justice for all our citizens—even (maybe even especially) if this means that he loses his case.
In the 1990s, a new model of the office emerged. Political sharks like New York’s attorney general (and now governor) Eliot Spitzer realized they could use their power to file lawsuits and criminal charges to bludgeon large corporations into big settlements that would make for good headlines. They started with unpopular defendants like the tobacco companies and, once drawing blood, moved on to any other industry with big money and bad publicity. Along the way, these shrewd politicians discovered a neat deal: they could hire their plaintiff lawyer friends to help bring these lawsuits. The lawyers would reap millions from the extorted settlements and then (coincidentally, I’m sure) make large campaign contributions to the attorney general’s next campaign.
Now this pernicious model has been brought to Oklahoma. Witness Mr. Edmondson’s recent arguments against the lawsuit reform bill. He criticized the elimination of joint and several liability (a rule which provides that, simply because I am a deep pocket, I pay 100 percent of the damages, even if I only caused a fraction of the harm). He stated, “I cannot for the life of me, figure out why the state would want to limit its own ability to recover damages when the state has been harmed.” He seems never to have considered that his job requires that he value justice to individual defendants over collecting cash for the state treasury.
The problem with envisioning the attorney general as the state’s chief plaintiffs’ lawyer is that it not only undermines the fair and impartial administration of justice, it also fails on its own terms—these lawsuits will economically harm, not benefit, the state. Politicians sometimes forget that, as the airlines tell us, we have a choice of who to fly—and businesses have a choice of where they want to be.
Perhaps New York and California can afford to go after their business and health care leaders—there will be plenty of people who will still want or need to do business there. But if the political leaders of our state continue to give the back of their hand to those very people they say we’re trying to attract, they will just pull up stakes and go where they are welcome.
About the Author:
Andrew Spiropoulos (M.A., J.D., University of Chicago) is a professor of law at Oklahoma City University and an adjunct scholar at the Oklahoma Council of Public Affairs (ocpathink.org). He is a contributor to The Heritage Guide to the Constitution, published by The Heritage Foundation.
