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Elena Kagan?s Tort Inbox

By Joe Consumer

The Sunlight Foundation has published the emails of Elena Kagan while she was in the Clinton White House.  (?She was Associate White House Counsel from 1995 to 1996 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) from 1997 to 1999.?)  We decided to take little look around, and found some interesting stuff.

One of the big tort issues with which the White House was dealing, was an anti-consumer, anti-patient federal products liability bill that President Clinton vetoed.  The White House met with consumer groups on this, but I?m not sure it had much impact because we know the veto clearly did not end the conversation.  That was thanks to continued pressure from the manufacturers and ?tort reform? groups. 

Victor Schwartz, counsel for the American Tort Reform Association, wasn?t kidding when he told Business Insurance, ?I worked with Elena from about 1995 until about 1998 on tort reform issues, when she was assistant White House counsel and that was part of her portfolio. [After Clinton vetoed the bill], Mr. Schwartz worked with Ms. Kagan and her boss to arrive at a product liability bill.  ?I believe the president would have signed but some in the business community believe did not go far enough,? he said." 

I'll say.  Here?s one email:

?I used to talk with Victor Schwartz regularly.  He will offer to work towards a compromise bill -- i.e., a bill going part way in the direction of our veto message -- but will want some definite idea of what we can live with.?

And another:

1. Victor Schwartz called to tell me he was sending us another memo on products reform -- this one dealing more with politics, and less with substance. During our conversation, he proposed that Jack convene a meeting that both he (Schwartz) and the new President of ATLA would attend -- presumably to see if there is any common ground.  I don't see any reason to do this right now, but it is something to keep in mind.

During our conversation, he proposed that Jack convene a meeting that both he (Schwartz) and the new President of ATLA would attend -- presumably to see if there is any common ground.  I don't see any reason to do this right now, but it is something to keep in mind.  2.  Per your note, Jack, I told Mark Gittenstein that you would be happy to meet - - after the transition - - with him and a bunch of high-tech types interested in securities reform.    

More on that ?securities reform? issue later. 

Following Clinton's products veto there was more discussion, like this memo, which reiterates some of the huge problems with federal product liability legislation and offers some limited places for POTUS to compromise, or go to politically. 

The Administration did, in fact, find something they could live with: The Biomaterials Access Assurance Act of 1998, which limits the liability of the biomaterials industry - suppliers of ?raw materials? and ?components? used in the manufacture of medical implants.  Some of this bill?s evolution can be seen here.  There?s also discussion of the 1997 volunteer immunity bill

And at the end of this memo, there?s support for a bizarre bill (lest anyone get any "ideas" today) that would have been a federal takeover of auto insurance laws, forcing all motorists into one of two unfair auto insurance systems.  Under one system -- ?pure? no-fault -- consumers seriously injured in accidents would completely forfeit their rights to recover non-economic damages (for injuries such as permanent disfigurement, serious impairment of a bodily function, loss of a limb, or pain and suffering), an option is so unfair that no state in the country has adopted it.  Under the other system -- a distorted version of the traditional tort system -- consumers would be forced to pay higher insurance rates and still only get limited access to the courts.  Good thing that didn?t go anywhere.

Meanwhile, we were looking for any evidence at all that Kagan was instrumental in President Clinton?s veto (later overridden) of the 1995 Private Security Litigation Reform Act (PSLRA), which the New York Times recently wrote about.  Notably, this disastrous law made it more difficult to hold accountable financial firms that engage in fraud, and we know how that turned out.  We couldn't find much.  The PSLRA was followed up by another problematic law, the Securities Litigation Uniform Standards Act of 1998 (SLUSA), which Clinton signed.  According to this email, it seems that law happened because then congressman Joe Kennedy wanted to be governor.   Oy.

Some fascinating stuff, for sure.

Full post as published by ThePopTort on June 24, 2010 (boomark / email).