Consumer Law

Justice Brennan and Tort Reform?

By Joe Consumer

There?s a new book out about the late U.S. Supreme Court Justice William Brennan, called Justice Brennan: Liberal Champion.  It was written by former Wall Street Journal reporter Stephen Wermiel and Seth Stern.  The story behind the publishing of the book is almost as interesting as its subject matter.  Mr. Wermiel apparently had unprecedented access to Justice Brennan beginning in 1986, but Wermiel was unable to finish the book until now ? long after Brennan?s 1990 retirement and 1997 passing.  He also needed to bring in Mr. Stern to actually write the book.  That is some writer?s block! 

The New York Times reported that while researching the book,

Mr. Wermiel told no one but his family and The Journal?s Washington bureau chief. Under the terms of the deal, though, the paper had to forgo what could have been spectacular scoops.

In 1987, for instance, the court heard a $10 billion dispute between Texaco Inc. and the Pennzoil Company. ?I could have told you three months before it came out how that was going to come out,? said Mr. Wermiel, who now teaches constitutional law at American University Washington College of Law.

Ah yes, remember that case?  Huge jury verdict in a fight between two huge oil companies, yet not the kind of case ever targeted by so-called ?tort reform? laws because, as we?ve noted before, hypocrisy isn?t something that seems to bother this movement. 

So what would Mr. Brennan have thought about so-called ?tort reform? anyway?  We're guessing, not much.  On several occasions, Justice Brennan noted the fundamental right that all Americans share: that for every wrong there must be a remedy.  For example, he notes this in his famous constitutional tort decision, Bivens vs Six Unknown Named Agents, and its progeny   A number of state Supreme Courts have struck down tort reform laws for this very reason - because they violate the fundamental right to a remedy, a right that is even stronger under many state constitutions. (For a sampling of examples, go here.)

Mr. Justice Brennan, how much we miss you!

Full post as published by ThePopTort on October 05, 2010 (boomark / email).