Litigation Policy In the Trump Administration
For a quarter century Republicans in American politics have broadly campaigned on a promise of reducing the volume and cost of litigation. At first glance, it might seem that the rise of President-elect Donald Trump might signal a discarding or even a reversal of this position. As a businessman, Trump has been an intensive, sometimes zealous litigant; unlike earlier GOP candidates he has said little about lawsuit reform on the campaign trail; and some of what he has said, especially his instantly famous remarks about "opening up" libel law to allow more damage suits against the press, is in tension with the goal of a less costly and more predictable legal system.
At the same time, there are reasons to believe that a Trump administration will maintain considerable continuity with the positions of earlier GOP administrations as well as of Congressional Republicans. Here are some of those reasons.
* Both sides of the "v." Trump has been in court frequently as plaintiff and defendant alike. While he may be nobody's idea of a critic of litigiousness, there is little reason to believe that his instincts about the legal system are systematically pro-plaintiff or pro-trial-lawyer in the manner of some Capitol Hill Democrats.
* Much of the national litigation reform agenda is now negative. Some of the biggest priorities in the short term are simply to block or pull back destructive federal initiatives that the Obama administration pushed hard, including proposals to ban pre-dispute arbitration in consumer and labor settings in favor of litigation; proposals to extend overtime rules deep into the white-collar workforce, with wage-and-hour class actions inevitably to follow, and the idea of interpreting the Americans with Disabilities Act to require websites and online services to be made accessible to disabled users, on pain of freelance lawsuits. Trump has signaled that his administration will be skeptical of grandiose regulation, and by knocking out rules of this sort he would also knock out much prospective litigation.
To be sure, some litigation issues narrowly related to trade and immigrant employment might see a reset. And because Trump may be more open than most GOP presidents to cutting deals with organized labor, it is possible he will seek new solutions on issues like compensation for occupational illness arising from asbestos and other long-term exposures.
* Social reform litigation. A Hillary Clinton administration would have been likely to cheer on big cities like Miami in "disparate impact" litigation seeking massive damages from banks for lending too freely (or too stingily; the theories vary) on mortgages and construction in urban neighborhoods. Whatever else is uncertain about a Trump administration, it seems unlikely that its instincts are to put real estate development at the mercy of redistributive social justice campaigns. And while Clinton campaigned on a promise to reopen the gun-control-through-lawsuits campaign by repealing the Protection of Lawful Commerce in Arms Act (PLCAA), that idea is now gone.
* On libel law. As I and others have pointed out, our system doesn't give the President much of a say in libel law, which consists mostly of state tort law bounded by constitutional law as interpreted by the Supreme Court in cases like New York Times v. Sullivan. Some earlier presidents (as well as some noted Republican-appointed jurists) have favored broader rights for plaintiffs to recover, but there is little evidence that the Supreme Court is on the cusp of any major reconsiderations here. One may also doubt that Trump in office will really make this a make-or-break litmus test for appointees knowing that it would limit his choice of politically appealing nominees and that a chipping away of Times v. Sullivan would in any case probably take many years.
* Progress on litigation reform does not depend on White House leadership. Most positive change in this area has come from a combination of state legislatures and the courts themselves through judicially driven improvements in doctrine and procedure, especially via the U.S. Supreme Court (Daubert, Iqbal/Twombly, Dukes, etc.) With occasional exceptions, as with securities litigation and class action reform, the U.S. Congress has not achieved much in this area, in part because our system of federalism places real limits on wholesale displacement of state court authority by federal.
All of these predictions depend greatly on appointments; Trump is known above all for his capacity to surprise. But on an issue as important to the nation's economic climate as this, don't bet on President Trump to break with the near-uniform sentiment of the business community.
