Tuesday, February 22, 2005

Can't regulate, can't sue, what do you do?

Two posts back, I briefly discussed why conservatives, especially of the anti-worker, anti-environmental variety, might seek to have the Constitution in Exile re-instated. I failed to mention that this is part of a larger strategy by these same atavistic elitists to severely limit the American citizen's ability to protect their quality of life. By this, I mean that conservatives are actively seeking to limit our ability to protect ourselves against the depredations, intentional and otherwise, of the ruling economic elites. I know that sounds ridiculous, but hear me out.

Suppose the Constitution in Exile is reinstated and much of the modern regulatory state is done away with. What are the nation's options in regulating corporate behavior? Well, Congress could pass regulatory laws that don't violate a strict reading of the Commerce Clause or the non-delegation doctrine. These laws would, by their very nature, lack the specificity and breadth of most modern regulations, as Congress lacks the professional expertise and the time of our regulatory agencies. Moreover, special interests who make it exceptionally hard to pass very general delegative legislation, would likely make it impossible to pass any sort of meaningful regulatory legislation. Thus, Congress' regulatory efforts, if any actually took place, would likely be less than effectual.

I suppose states could take up regulatory efforts. California, for example, has done a fine job in recent years to address automobile emissions of greenhouse gases. Of course, these are being challenged in federal court. The auto industry and the Bush Administration claim that this amounts to a fuel-economy standard, which is unlawful becuase Congress has already created such a standard and pre-empted state action in that area. This case suggests one reason why citizens might not be able to rely on the states once the Constitution is brought out of "exile": Congress could pass a weak regulatory law like that discussed above and pre-empt state action. We'd be left with no state alternative and an ineffectual federal law.

Having been denied a state and federal regulatory solution, then, how could citizens seek to rectify corporate wrongdoing? The only other obvious solution is legal action, in particular, class actions. Why class action? Because few individuals have the financial wherewithal to challenge deep-pocket corporations in court, and no lawyer is going to take one single case on a contingency basis. However, if a sufficiently large number of citizens were being hurt by a corporate act, they could afford to pursue a class tort in state or federal court. Well, they could until last Friday. Last Friday the President signed a "class action reform" bill that, among other steps, transfers most large multi-state class action suits to federal court. Why do that? Ultimately, because state judges and state juries are more "plaintiff-friendly" and are willing to ding corporations for their bad acts. Federal courts, on the other hand, have greater procedural bars to class actions and judges with fuller dockets, both of which make class actions more difficult to pursue and win. Thus, though this bill doesn't entirely close of class action suits, it makes them far less useful as a tool for individuals to protect themselves against corporate bad acts.

Which brings us to the question, I posed in the title: if we can't count on government regulation, and we can't sue corporate wrong-doers, what can we do when it comes to protecting ourselves and our quality of life? If President Bush and his cronies have their way, we'll just have to bend over and take it.