America is currently in the midst of a wider political realignment. The political left, which once claimed to stand up for the forgotten “little man” against the titans of Big Business, has in recent years decided that Big Business actually an ally of ease in his long Gramsci-a “march” through the institutions. Chris Rufo may have demonstrated this trend better than anyone.
And the political right, whose once instinctive neoliberal leanings made it a suitable ally for big business, is currently rethinking its approach to political economy in general, as well as its specific relationship to culturally left-wing multinational corporations. The most tangible recent expression of this rethink has been the crippling sentence of the Florida Republican government, Ron DeSantis, of The Walt Disney Company for acting on behalf of innocent children in the Sunshine State who were being sexually cared for.
Times, as Bob Dylan once sang, are changing. (RELATED: ANDERSON: Disney Overdose on Wokeness. You’d Think They Would Know Better by Now)
But as conservatives (prudentially) begin to pursue a more contentious agenda to rein in the corporate oligarchs who hate us and try to subjugate us, like Amazon, the responsibility will shift a bit to an area of under-deserved attention: the judicial economy.
In particular, if conservatives want to better ensure that our deserving legal challenges to awaken tyranny stand out and are not just dismissed, it becomes important to better screen and eradicate, frivolous lawsuits – and especially frivolous lawsuits related to torts. Any frivolous tort grinds the gears of the already overburdened legal system, draining scarce time, attention and resources from genuine concerns.
Consider, for example, the proliferation of harmful “public nuisance” tort lawsuits, which I have previously described elsewhere. Fortunately, the Oklahoma Supreme Court pulled the rug from public nuisance advocates last fall in a major ruling. Or consider the well-known increase in medical malpractice lawsuits in the United States; it is estimated that approximately 20,000 malpractice lawsuits are filed in the country each year, most of which are frivolous.
The cumulative effect of the spreading of this kind of frivolous litigation is to list the works and make it more difficult for targeted, prudential proceedings against worthy targets. Some of those lawsuits would involve the more realistic, prudential use of antitrust against the overly powerful and overly awakened Silicon Valley oligarchs who are our 21stcentury public square.
And some of those strategic lawsuits would lead to class action lawsuits against consumer fraud if and when Big Tech companies violate their terms of service.
The net effect of such lawsuits should act as a deterrent against awakened corporate actors who want to use corporate power to bring half the population to their knees. We have to fight back. But our task is only complicated by the proliferation of really frivolous lawsuits.
Reform is therefore necessary. But that takes time. In the meantime, some companies are doing their best to fend off blatantly bogus lawsuits from self-serving attorneys, just hoping to clean up the works and take home some extra bacon. A creative legal strategy, originating from the state where I practiced law, is the so-called Texas Two-Step.
Under the Texas Business Organizations Code, a corporation can be split in two, with one entity receiving all of its assets-limited liabilities for victims of tort and the other, larger entity can isolate its assets from the liabilities. Since the new, smaller entity will not have enough of its own assets to cover all its liabilities, it can file for bankruptcy, moving the case from civil court to bankruptcy court. Thus, such a tactic helps to clear the civil files, which is a victory not only for the lightly charged defendant, but also for the judicial economy in general.
Tort lawyers, who are mostly still politically progressives, tend to hate these types of strategies. And if progressives are skeptical of defensive maneuvers like the Texas Two-Step, they should work with conservatives to push for real, more sustainable reforms.
But if emergency measures are needed to free up bandwidth on the role to focus on more pressing legal matters, such as antitrust cases and even consumer fraud lawsuits against Big Tech, so be it. More states should consider dancing to the Texas Two-Step rhythm.
Josh Hammer is news week opinion editor, host of “The Josh Hammer Show,” a syndicate columnist, and a research fellow at the Edmund Burke Foundation. Twitter: @josh_hammer†
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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