National Review Online contributor John Fund used anecdotal evidence of voter fraud and specious legal analysis to continue to advocate for oppressive voter identification laws.
On January 17, a Pennsylvania judge ruled that the state's voter ID law was unconstitutional under the state constitution because "hundreds of thousands of qualified voters ... lack compliant ID," and that the state had failed to ease the burdens associated with obtaining one. As The Nation recently reported, "getting a voter ID in Pennsylvania was a bureaucratic nightmare" after the statute went into effect because "[t]here are 9,300 polling places in the state, but only seventy-one DMV offices."
But Fund apparently didn't find this scenario all that nightmarish. In a recent editorial, he dismissed the number of voters without appropriate ID as "inflated" and argued that the law should still be rescued by the state legislature:
In 2008, the U.S. Supreme Court upheld on a 6-to-3 vote the constitutionality of laws requiring voter ID at the polls. Justice John Paul Stevens, one of the left-of-center judges on the Court, wrote the opinion in a case involving Indiana's voter-ID law: He found that the Court could not "conclude that the statute imposes 'excessively burdensome requirements' on any class of voters."
But our Constitution decentralizes our election procedures over 13,000 counties and towns, and states themselves are in charge of writing voter-ID laws should they choose to do so. Some do it better than others.
Last Friday, Judge Bernard McGinley of the Pennsylvania Commonwealth Court found that his state's voter-ID law violated Pennsylvania's constitution because the manner in which it was implemented placed an unreasonable burden on voters. The law, passed in 2012, had been blocked from taking effect while the court case against it ground forward. McGinley's decision is likely to be appealed to the Pennsylvania Supreme Court. Or the legislature could pass a new version of the law that would answer the judge's objections.
McGinley concluded that the law had been implemented in a sloppy, haphazard way and that the state had not done enough to help provide IDs to voters who lacked one.
When Pennsylvania's voter-ID law is either appealed or rewritten, let's hope that the state does a better job debunking the inflated estimates that hundreds of thousands of Pennsylvanians lacked an ID.
The state should also emphasize that even when voters show up at the polling place without an ID, they can vote on a provisional ballot. The state will count that ballot if the voter mails, faxes, or e-mails a copy of acceptable ID within six days of the election. If a person lacks the money to obtain the background documents necessary to acquire a voter ID, he can sign an affidavit attesting to that fact, after which his vote will be counted without further questions.
Fund's claim that the Supreme Court upheld the constitutionality of strict voter ID laws is misleading -- the case he references is Crawford v. Marion County Election Board, which challenged an Indiana voter ID law specifically, not the constitutionality of ID requirements in general. In the Pennsylvania case, the judge made sure to note that Crawford was not particularly relevant to his analysis, because the underlying facts that supported the legal challenges were so dissimilar. But Fund ignores this important distinction between the two cases in favor of his preferred narrative: that discriminatory voter ID laws are awesome.
The New York Times profiled a highly-secretive "collection of perhaps 1,500 right-leaning players in the entertainment industry" whose belated application for non-profit status may be complicated by their seemingly partisan affiliation with political candidates and figures, possible campaign activity that is prohibited. Notably, the Times missed a significant inclusion on this list of right-wing stars: Justice Antonin Scalia.
The group's application for a 501(c)(3) designation, a tax status for non-partisan groups that would allow donors to claim deductions, is currently being scrutinized because its claim that it "has absolutely no political agenda" is at odds with its record of hosting right-wing media and officials, according to the January 22 Times article. Unmentioned by the Times, listed on his most recent annual Financial Disclosure Report (CY 2012), Scalia also gave an August 25, 2012, speech to Friends of Abe and received reimbursement for his "transportation, food, and lodging." From the Times:
[T]he Internal Revenue Service is reviewing the group's activities in connection with its application for tax-exempt status. Last week, federal tax authorities presented the group with a 10-point request for detailed information about its meetings with politicians like Paul D. Ryan, Thaddeus McCotter and Herman Cain, among other matters, according to people briefed on the inquiry.
Tax experts said that an organization's membership list is information that would not typically be required. The I.R.S. already had access to the site's basic levels, a request it considers routine for applications for 501(c)(3) nonprofit status.
Friends of Abe -- the name refers to Abraham Lincoln -- has strongly discouraged the naming of its members. That policy even prohibits the use of cameras at group events, to avoid the unwilling identification of all but a few associates -- the actors Gary Sinise, Jon Voight and Kelsey Grammer, or the writer-producer Lionel Chetwynd, for instance -- who have spoken openly about their conservative political views.
The I.R.S. request comes in the face of a continuing congressional investigation into the agency's reviews of political nonprofits, most of them conservative-leaning, which provoked outrage on the right and forced the departure last year of several high-ranking I.R.S. officials. But unlike most of those groups, which had sought I.R.S. approval for a mix of election campaigning and nonpartisan issue advocacy, Friends of Abe is seeking a far more restrictive tax status, known as 501(c)(3), that would let donors claim a tax deduction, but strictly prohibits any form of partisan activity.
While tax-exempt groups are permitted to invite candidates to speak at events, it is not uncommon for the I.R.S. to scrutinize such activities to determine whether they cross the line into partisan election activity. One issue is whether the organization invites all the qualified candidates.
"The I.R.S. would say that if you are inviting only conservative candidates, that's a problem," said Marcus S. Owens, a former director of the I.R.S.'s exempt organizations division. "But it's never really been litigated."
Right-wing media continue to pretend that dozens of conservative lawsuits challenging various provisions of the Affordable Care Act (ACA) are principled legal challenges to supposed overreach from the Obama administration. In reality, these lawsuits are radical attacks on well-established law, and have been widely rejected by both legal experts and the courts.
The National Review Online decried new federal guidelines that could reduce the number of needless arrests and incarceration of minority students in public schools.
On January 8, the Department of Justice (DOJ) and the Department of Education (DOE) issued new, optional guidelines to help public schools develop non-discriminatory disciplinary policies. Right-wing media were quick to accuse the Obama administration of playing the "race card" because the guidelines addressed the fact that minority students are far more likely to be disciplined -- often unfairly and excessively -- for nonviolent and minor disruptions in school. Because more and more schools rely on armed police officers known as "school resource officers" to handle behavioral problems, many students of color end up getting arrested and incarcerated.
NRO has previously called the new DOJ guidelines "disturbing." But in a January 16 editorial, the site went further, complaining that the guidelines were an overblown response to "spectral racism" and were based on "arbitrary evidence" (emphasis added):
The Obama administration is no stranger to trying to micromanage complex, intractable problems from Washington. But using the Civil Rights Act to direct schools' disciplinary practices might be its most foolhardy idea yet. Beginning in 2010, the Department of Education, led by the occasionally sensible Arne Duncan, announced that it intended to pursue vigorously civil-rights violations in the American school system. That's led to a number of DOE investigations of various school districts with racially disparate discipline rates.
The feds contend, as an aside, that discrimination in discipline shows up in studies when controlling for poverty and other factors, but the evidence for this contention is ludicrously weak. Federal civil-rights investigators don't have to publicly disclose the grounds they've used to initiate investigations of racial discrimination, but their work so far leans as heavily as the new guidelines do on evidence of disparate statistical impact, rather than on indications of real bias and disparate treatment. They will not admit that they rely on such arbitrary evidence, since there is little statutory justification in the Civil Rights Act for such a disparate-impact case, but the objection is clear enough: Certain minorities are disciplined at higher rates than whites are, so racism must be at work.
When such a simple heuristic is applied, schools will feel even more pressure than they already do to adopt a simple solution: try to discipline all races, regardless of behavior, at the same rate. This might mean arbitrarily increasing rates of punishment for whites or, much more likely, reducing them for blacks and Hispanics, disadvantaging their classmates of all races who'd like peaceful classrooms.
No one should be surprised by the Obama administration's zeal for alleging racial discrimination when it isn't there ... But it is still shocking that the federal government is effectively encouraging schools to judge students on the color of their skin rather than the content of their character.
The entire point of the DOJ's guidelines is to encourage schools to stop mistreating students based on the color of their skin, so it's odd that NRO would conclude the exact opposite.
Fox News pushed various myths about the latest challenge to the contraceptive mandate provision in the Affordable Care Act (ACA), with Fox & Friends co-host Steve Doocy falsely accusing the Obama Administration of forcing "religious freedom [to] take a backseat to Obamacare."
In a January 15 segment on Fox & Friends, Doocy and his guest, National Review Online editor Rich Lowry, discussed a new challenge to the contraception mandate provision in the ACA. This latest challenge, brought by a group of Catholic nuns from the charity Little Sisters of the Poor, argues that the mandate violates the religious freedom of the nuns because they disagree with the use of contraceptives.
This is not the first time Fox News has misrepresented the Little Sisters case. The fact is, the nuns are already exemptible from the mandate, as both Doocy and Lowry initially point out in the segment. All the sisters need to do is sign a form registering their religious objection -- a requirement that Lowry calls "wrong" and "perverse." For his part, Doocy said more Catholics should be given a "bigger carve out" under the ACA because they "just don't believe in this stuff":
Doocy and Lowry's framing of this issue as an assault on religious freedom -- "Little Sister vs. Big Government" -- is bizarre. Although Lowry begins the segment by admitting the nuns are exempt from the mandate, he still somehow concludes that the administration "should let the nuns off the hook." This upending of precedent would undermine all similar exemption mechanisms for religious objectors whose stance requires someone else to follow the law in their stead. Doocy undercuts his own argument that the government doesn't provide enough exemptions for Catholics, who "by and large, stand against abortion and contraception" when he concedes that "they're more in favor it, for various reasons, these days." And in fact, 98% of sexually active Catholics use or have used contraceptives in their lives.
Lowry ended the segment by explaining that, under the Religious Freedom Restoration Act (RFRA), the government cannot substantially burden religious freedom without a "compelling governmental interest." Whether or not signing a form is a "substantial burden" remains to be seen, but Lowry disingenuously suggests that the only compelling interest at play here is that the mandate apply to everyone, even though the mandate has improved access to contraception and other preventive care services for up to 47 million women. But apparently that's not compelling enough for Fox News.
Fox News joined other right-wing media and misrepresented new federal guidelines designed to reduce the disproportionate number of minority students who are unfairly suspended, expelled, or arrested for disruptive behavior in school.
On January 8, the Department of Education and the Department of Justice issued new guidelines to help public schools "administer student discipline without discriminating on the basis of race, color, or national origin." The guidelines, which are not mandatory, are in response to statistics and analyses that suggest that students of color are significantly more likely to be punished than their similarly-situated white classmates. This means that students who are already disadvantaged will lose out on crucial school time not only due to unfairly punitive disciplinary measures, like suspension, expulsion, or even arrest, but unfortunately due to racial discrimination as well.
In a January 13 segment on The Kelly File, host Megyn Kelly and her "Power Panel" agreed that "zero tolerance" policies are overbroad and ineffective. But Kelly still erroneously insisted that kids "cannot be suspended" under the new guidelines and that they "suggest[ed] punishment should be based on race. " Her panelists, who included both a Fox legal analyst and a blogger for the right-wing Washington Free Beacon, agreed, arguing that the guidelines are "handcuffing our educators" and inappropriately "bringing race into it":
Right-wing media are already spinning falsehoods and fear-mongering about the federal government's administrative decision to recognize federal marriage benefits for same-sex couples who were married in Utah.
On December 20, a federal judge ruled that Utah's ban on same-sex marriage was unconstitutional. Shortly thereafter, state officials began issuing marriage licenses to same-sex couples. However, on January 6, the Supreme Court of the United States temporarily blocked the ruling as an appeal progressed -- halting the issuance of marriage licenses and causing a great deal of confusion for those couples who had already exchanged vows under state law.
In light of that confusion, Attorney General Eric Holder announced on January 10 that for purposes of federal law, legally married couples affected by the ruling would in fact be eligible to apply for federal marriage benefits while the litigation worked its way through the courts. As Holder observed, one of the core holdings of the landmark marriage equality decision of United States v. Windsor is that the federal government is prohibited from discriminating against lawfully performed same-sex marriages.
Nevertheless, right-wing media were quick to overreact to Holder's announcement, with Rush Limbaugh accusing him of acting like "Stalinists." National Review Online joined Limbaugh in condemning Holder, calling it another example of the "lawlessness of the Obama administration." From The Rush Limbaugh Show:
LIMBAUGH: So the states, when you've got people like Holder and Obama in office, it doesn't matter what governors do, it doesn't matter what the people of the state want. What Holder and Obama want is what's going to happen. Holder does not have this kind of power or authority, but he does if nobody is going to stop him or challenge him.
So the law doesn't mean anything. Existing law doesn't mean anything if changes to it are being contemplated, and so the people of Utah -- same-sex marriage, yes, no, are now victims, and the federal government is just going to ride in and wave the powerful magic wand and say, "This is the way it's gonna be." So who needs governors? You have the attorney general engaging in executive actions, executive orders, just as if Obama were to do it. Stalinists, folks.
There is nothing lawless about the federal government making a determination about the disbursement of federal benefits. Doing so does not usurp the state's authority to recognize or acknowledge certain relationships for the purposes of state benefits. Holder's statement today does not require Utah or any other state to recognize same-sex marriages. Rather, it provides some certainty to couples whose marriages were legal under state law at the time they were performed. Among others, this legal opinion has been offered by Utah Attorney General Sean Reyes, who informed state officials that "marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed."
Fox News continued to attack the Department of Justice (DOJ) attorney selected to investigate the IRS targeting scandal because she has donated money to President Obama's past campaigns, ignoring the fact that it is illegal for DOJ to take such donations into consideration in assigning investigators.
Last year, Obama announced an investigation into claims that the IRS was unfairly targeting conservative non-profit groups. Barbara Bosserman, senior legal counsel of the DOJ's civil rights division, was selected to head up the investigation. Despite Bosserman's extensive qualifications, right-wing media have been quick to call her objectivity into question based on the unremarkable fact that she is one of the millions of Americans who contribute to Democratic political candidates. Right-wing media also ignored the fact that it would be illegal for the DOJ to take her political affiliations into consideration when managing her professional advancement.
In a January 10 segment on Fox & Friends, Fox contributor and attorney Peter Johnson, Jr. joined host Steve Doocy to complain that, regardless of the outcome, the DOJ's investigation of the IRS is "tainted" because of Bosserman's campaign contributions.
JOHNSON: The Justice Department says, don't look at those campaign contributions. Let us look at what those campaign contributions are, totaling about $6,000.
So Ms. Bosserman, who I'm sure is a fine lawyer, is tainted by these contributions. Tainted by these contributions. And so we expect her to put all of that aside, put all her political procliviites aside, and say "I'm going to be fair now, to this. I'm for the president, I've given repeatedly, but I'm going to give these poor tea party people -- who have been screwed over, big time -- a fair shake."
DOOCY: You know, this would be like -- with the Chris Christie thing, a US Attorney is looking into it, who is appointed by Barack Obama -- this would be like Chris Christie appointing somebody to investigate the bridge thing.
JOHNSON: You don't have to go to law school, all you have to have is a sense of fairness and justice, and ethics, and a sense of Americanism. Now the DOJ says, "No it's OK, we can do this. A spokeswoman said, "it is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions." So what they're saying is, that person could give $15,000, $20,000 --
DOOCY: A million!
Johnson and Doocy quickly dismiss the DOJ's explanation that it would be a violation of federal law for the agency to remove Bosserman from the investigation based on her political leanings. But their skepticism of DOJ is completely unfounded, and it is their suggestion of discriminating against Bosserman that is both improper and illegal.
The Wall Street Journal editorial board is continuing its long tradition of suspect legal analysis, this time denouncing federal judges for "defying" Supreme Court precedent by allowing class action lawsuits to proceed, despite its previous disregard for well-established law in other areas.
This is an odd posture from the WSJ, especially since they weren't particularly concerned with Supreme Court precedent when they supported overturning portions of the Voting Rights Act, getting rid of affirmative action in college admissions, and fetal "personhood" amendments that would result in a blanket ban of abortion. But perhaps it's not all that surprising that the WSJ editorial board would now hypocritically cling to precedent when it comes to protecting corporate wealth.
In a January 8 editorial, the WSJ complained that appellate court judges -- including conservative Judge Richard Posner -- were "defying precedent" by allowing class action lawsuits against Sears and Whirlpool to proceed. The class members in these lawsuits are seeking damages after Whirlpool washing machines, sold by Sears, developed untreatable mold problems. The federal courts' decision to certify this class of plaintiffs, according to the WSJ, is tantamount to the lower courts telling the Supreme Court to "take a hike":
Must judges follow Supreme Court precedent? Any high school student would say yes -- at least where they still teach civics -- but the High Court now has a chance to reinforce the point.
As early as Friday the Justices will decide whether to hear Whirlpool v. Glazer and Sears v. Butler, which concern whether class-action lawsuits can be certified even if many class members suffered no harm. It's the second time in less than nine months that the cases are seeking a hearing at the Supreme Court, highlighting a growing trend of lower courts defying precedent.
In both cases the classes are structured around consumers who complained of moldy odors in their front-loading, high-efficiency washing machines. Last spring, the Supreme Court vacated decisions by the Sixth Circuit (Whirlpool) and Seventh Circuit (Sears) Courts of Appeals to certify the classes and remanded the cases for reconsideration in light of the Supreme Court's 2013 decision in Comcast v. Behrend, which narrowed the standards for certifying class actions.
Under Section 23(b)(3) of the Federal Rules of Civil Procedure, class actions can be certified only when "questions of law or fact common to class members predominate over any questions affecting only individual members." In Comcast, as in 2011's Wal-Mart v. Dukes, the Justices drew specific parameters for the commonality of the class. If plaintiffs are unable to demonstrate common injury or damages on a classwide basis, the Court said, no class should be certified.
Rather than adjusting their opinions, the Sixth and Seventh Circuits blew past the Court's new guidance and reinstated their previous decisions. The Sixth Circuit panel said Comcast had "limited application" while Seventh Circuit Judge Richard Posner shrugged that Comcast didn't change his reasoning because class actions are the most efficient way to handle the mold complaints.
Even if the washing machine companies were right that most members of the class had no exposure to mold, Judge Posner wrote, so what? If true, "that was an argument not for refusing to certify the class but for certifying it and then entering a judgment that would largely exonerate Sears -- a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment." Message to Supremes: Take a hike.
What the WSJ doesn't mention is that at least 1.3 million consumers called to complain about the mold and smell emanating from their Whirlpool washing machines. In response to complaints, Whirlpool developed and sold a cleaning product called "Affresh" to eliminate the mold problem. According to Slate senior editor Emily Bazelon, Whirlpool earned about $195 million in revenue from that cleaning product, despite the fact that Affresh didn't actually work. Later redesigns to the washers also failed to solve the mold problem. Nevertheless, Sears continued to sell the washers and consumers sued.
On January 15, the Supreme Court will hear oral arguments in McCullen v. Coakley, a case that could invalidate a Massachusetts statute that creates "buffer zones" around reproductive health centers to ensure the safety of patients and staff. Despite established legal precedent to the contrary, and a disturbing history of violence aimed at Planned Parenthood clinics, anti-choice protesters complain the law violates their First Amendment rights by pushing them back from the health centers' entrances.
From the January 4 edition of MSNBC's Disrupt with Karen Finney:
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In a January 3 segment on America's News Headquarters, Fox News host Gregg Jarrett erroneously stated that the legal use of the word "shall" in the Affordable Care Act (ACA) meant implementation delays are absolutely barred.
Jarrett argued that because the word "shall" was used in the ACA's section that incentivizes large employers to provide health insurance by 2014, the Obama administration's delay of this "employer mandate" is illegal. In an interview with his Republican guest, current Texas Attorney General and gubernatorial candidate Greg Abbott, Jarrett continued, "'shall' -- and you learned this in law school -- is a mandatory word. It is not fungible." Abbott confidently agreed, saying that "as a former Texas Supreme Court justice myself, I can tell you that courts consistently apply that word, 'shall,' to mean that it provides the executive branch no latitude in how they are going to apply the law."
America's Newsroom co-host Bill Hemmer botched his description of a recent legal challenge to the contraception mandate of the Affordable Care Act (ACA) by wrongly claiming that a group of nuns who run the Little Sisters of the Poor charity will be forced to provide birth control to their employees in contravention of their religious beliefs.
In a segment discussing Supreme Court Justice Sonia Sotomayor's recent temporary injunction of the application of the birth control mandate for two non-profits suing the government in Little Sisters of the Poor v. Sebelius, Hemmer misleadingly claimed that the ACA would "make [the nuns] provide birth control" to their employees. Hemmer's guest, Weekly Standard senior writer and Fox News contributor Stephen Hayes, agreed with Hemmer's characterization, calling the Sisters' existing eligibility for an exemption "not good enough." Hayes went on to falsely equate contraception with "abortifacients" and suggested that the Obama administration would provide abortions "if they had their way":
HEMMER: The point for this group of Catholic nuns is that if you make us provide birth control, not only does it violate our religious beliefs, but if we do not do it and adhere to the law, we will suffer fines that will cause us to go bankrupt.
HAYES: Right. And the administration -- remember, back in the spring -- proposed what they called a compromise, which would have allowed these non-profit groups to sort of certify that they weren't providing, actually providing this contraceptive and abortifacient coverage but then the insurance companies would be doing so on their behalf and the argument that you hear from those representing this group and others is that's not good enough because in effect what we would be doing is signing off and facilitating the coverage of these kinds of contraceptives and abortifacients for our employees.
HEMMER: Steve, just back up a little bit. Why did the administration think it was necessary to include this contraception mandate in the health care bill to begin with?
HAYES: Well, I think we've heard from the president pretty consistently that he believes that the government should be in the business of covering all of women's health and that is to include birth control, other contraceptives and these abortifacients -- and, I think if they had their way, abortions themselves.
In 2013, right-wing media kept busy misinforming about President Barack Obama's judicial nominees and progressive precedent such as health care reform and voting rights, all in service of spinning an unprecedented year of Republican obstructionism.
The GOP has consistently maintained a strategy for opposing the president's agenda that represents a new sort of nullification, a scorched-earth obstructionism aimed at immobilizing the federal government. But in 2013, after an endless campaign of procedural sabotage finally led to successful filibuster reform, the right-wing media outwardly embraced Congressional Republicans' political temper tantrum.
Right-wing media spent a generous portion of this year supporting Senate Republicans in their effort to block all of President Obama's nominees to the judiciary and executive branches, even when those nominees were singularly qualified and non-controversial. At the beginning of the year, these efforts got a boost from a bizarre appellate court opinion from the U.S. Court of Appeals for the D.C. Circuit that declared recess appointments unconstitutional. Recess appointments -- where the president makes temporary executive appointments while Congress is not in session -- have been utilized for centuries by both Republican and Democratic presidents to mitigate the filibuster. But that didn't keep right-wing media from reframing this decision as a personal rebuke of the president for his purported lawlessness -- even though George W. Bush and Ronald Reagan also took advantage of recess appointments during their respective presidencies. In actuality, the D.C. Circuit's opinion was a dangerous reimagining of the Constitution that could make the democratic process even more dysfunctional, a result Senate Republicans will be defending in oral arguments before the Supreme Court in 2014.
After initial coverage of the recess appointment decision died down, however, right-wing media reverted back to personal attacks. Two nominees in particular -- current Labor Secretary Thomas Perez and D.C. Circuit Court of Appeals judge Nina Pillard -- were on the receiving end of some of the worst smears. Continuing a well-worn tradition of attacking civil rights defenders as being the real racists, Perez was repeatedly and wrongly accused by The Wall Street Journal of insidiously discriminating against whites on behalf of persons of color. Other right-wing outlets baselessly accused "shady" Perez of dishonest behavior and "flagrant abuse" of his powers as head of the Civil Rights Division at the Department of Justice.
Pillard, on the other hand, was the victim of a barrage of right-wing sexist attacks that seemed at times to be out of a time warp, absurdly accused of being a radical "militant feminist," despite the fact that straight-news outlets and bipartisan legal experts called this law professor and famous civil rights litigator "exceptionally well-qualified." These gripes were based on the strained misreadings of a pair of academic articles which, among other ludicrous smears, attempted to cast her support for working mothers' family planning as "extreme." As legal reporter Dahlia Lithwick pointed out earlier this year, "Pillard's 'radical feminism' appears largely to take the form of seeking equality for women."
There's no reason to think that these right-wing smears will slow down in 2014, especially now that Senate Democrats have embraced the so-called "nuclear option," which Rush Limbaugh, among other overreactions, called the first step towards "total statist authoritarianism."
Forbes recently hyped the American Tort Reform Association's (ATRA) annual "Judicial Hellholes" report, but failed to mention that the report's attempt at methodology is anecdotal and highly suspect.
This is not the first time members of the right-wing media have cheered ATRA's Judicial Hellholes report, which aims to point out the jurisdictions that are the "worst" when it comes to allowing lawsuits to proceed. Last year, a Wall Street Journal editorial board writer called the report the "Oscars" of "abusive class actions."
In his December 16 article, Forbes writer Daniel Fisher called the report "an entertaining read" and minimized legitimate criticisms of ATRA's "hellhole" selection process:
News flash: Madison, County, Ill. is no longer the nation's worst place for corporations to find themselves in court.
California took top honors in the American Tort Reform's annual "Judicial Hellholes" list, an unashamedly pro-defendant look at the nation's judicial system. The Golden State won for the welcoming stance its courts take toward consumer class actions -- particularly against food companies -- and rampant lawsuits targeting small businesses over disability-access rules.
A dozen or so law firms, many of them veterans of the tobacco litigation jackpot, have filed 75 class actions against food companies in California and similar cases are running almost one a week, ATRA reports. Many involve the same plaintiffs and take advantage of the state's stringent laws to target companies like Chobani and Trader Joe's with claims that they mislabeled products -- for example, using the term "evaporated cane juice" instead of "sugar."
Critics may say, with justification, that ATRA is financed by businesses with a strong profit motive to cut down on such litigation. But these lawsuits aren't without cost: ATRA says California consumers paid at least part of the cost of $33.5 billion in settlements in 2013 alone. And, as I have reported elsewhere, studies cast strong doubt on the idea that consumers get anything of value out of class actions supposedly brought in their name.
Unlike the Journal's positive take on the "Judicial Hellholes" report from last year, Fisher at least points out some of its flaws -- namely that it's underwritten by corporations that don't want to pay to defend themselves in court. But Fisher seems far more concerned with the amount of money these companies spend on litigation than he is with the very real harm corporate wrongdoers cause. According to the Center for Justice & Democracy, many of ATRA's members are Fortune 500 companies, including "representatives of the tobacco, insurance, chemical, auto, and pharmaceutical companies" -- all industries with a history of questionable business practices.