Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Predicting the priorities of a new Congress is always an uncertain business, but there is no mistaking a new mood of buoyant determination in the GOP-strengthened House and Senate. A handful of civil justice reform bills and an energy package are among the key pieces of legislation that a reenergized Republican majority is almost certain to try to accomplish. Senate Republicans had a net gain of four seats in the elections, swelling their ranks to 55. That’s still not the 60 needed to stop debate over a bill and force a vote, but it’s significantly closer to that magic number than before. The House, meanwhile, remains even more firmly in the GOP’s grip. President George Bush himself put “legal reform” at the top of his legislative agenda in a news conference after the election. According to Kevin McMahon, the chairman of the American Tort Reform Association, “Med mal, asbestos, class action — none of these are slam dunks, but this is the best opportunity we’ve [had] at the federal level in years.” McMahon is also vice president for government affairs at Livonia, Michigan-based TRW Automotive Inc. Even so, the additional GOP senators may only provide minimal help in some areas, especially when it comes to the various legal reform bills expected to be introduced. Several of the new members replace senators who were already in the legal reform camp. And one new senator, Republican Mel Martinez of Florida, is the former head of that state’s Academy of Trial Lawyers. Most likely to pass is so-called class action reform, which would move class actions from state courts to federal courts, where they often have a harder time being certified. “Putting them into federal court would allow a broader view from perhaps a more sophisticated judge looking at the issue of certification,” says Stanton Anderson, who heads the U.S. Chamber Institute for Legal Reform in D.C. The bill, which passed the House last year, died in the Senate in July after its supporters failed to overcome a filibuster on an amendment to the legislation. A clean bill without any controversial amendments, however, is believed to have more than 60 votes. On the other hand, medical malpractice reform is still considered an uphill fight despite the GOP’s gains and President Bush’s strong support. “The hurdle for medical liability has always been the [proposed] cap of $250,000 on pain and suffering,” says Mark Behrens, a partner at Shook, Hardy & Bacon. Anderson from the U.S. Chamber concedes, “Med mal is a more complicated issue. We are ten to 12 to 15 votes shy in the Senate.” But the cap size could be modified, Anderson says, noting that Senator Dianne Feinstein (D-California) “is looking at $500,000.” Even Martinez, a trial lawyer, said during his campaign for Florida’s Senate seat that he would support a half-million cap. As a result, Anderson believes, “we could cobble something together. I’m much more optimistic now.” While the last Congress came close to passing class action reform, it was also just as close to passing a comprehensive energy bill, one that would include tax breaks and air compliance waivers, a doubling of ethanol production, and, most controversially, retroactive liability protection for makers of the gasoline additive MTBE, which has contaminated water supplies in more than two dozen states. “They probably now have the 60 votes,” says one energy lobbyist who asked to remain anonymous because he worked the bill. “If the majority in the House and Senate play it right, they can get a bill. But if you add … all the things business wants, that may push the total below 60,” he adds. The problem, notes Van Ness Feldman partner Robert Nordhaus, is that the world has changed significantly since the last energy bill was crafted early in the Bush administration. “That bill was responding to the California energy crisis, when oil prices were under $20 a barrel. Since then, oil is two-and-a-half times the price; natural gas, at least three times higher; and gasoline has almost doubled since 2001. Now, the issue is supply and price.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.