TORT REFORM, a rallying cry of the Republican revolution, has hit upon a scapegoat with unlikely mass appeal.
Contingency-fee lawyers, blamed as the root evil of our litigious society, have been socked with the "Attorneys Accountability Act," one of three legal-reform bills passed by the House this month.
The Senate is scheduled to begin debating its own, related bills next week.
The act's key provision -- which compels the losing party to pay some of the other's legal fees in a category of lawsuits that almost exclusively involves corporate defendants -- would devastate the plaintiff trade by inhibiting the Davids from going after the Goliaths and their high-powered counsel.
Let's give the ambulance chasers their due. They have long been the last-ditch guardians of every American's right to a day in court. They are the true voice of the grass-roots, lately being claimed as the private property of the Grand Old Party.
Consider the great Supreme Court Justice Hugo Black. On top of the better-known disgrace of being a onetime member of the Ku Klux Klan, he was also the quintessential damage-suit lawyer.
The populist sympathies that ultimately made him one of the court's most determined champions of the individual's rights were professionally rooted in his practice as a personal-injury specialist in Birmingham, Ala., before he left for the Senate in 1927.
In Hugo Black's neo-industrial Alabama, the plaintiffs' attorney was sometimes the only thing that stood between a client and virtual bondage to the iron and coal magnates who ruled Birmingham.
Because there were no labor unions or government agencies to offer them a hedge against destitution, injured workers sought relief in the court system -- which had also been rigged against them. The legislature had passed such statutes as the "fellow servant" law, which absolved the employer of liability if a plaintiff's injury was caused by a co-worker.
One of Hugo Black's regular adversaries invoked this defense against a coal miner whose hip had been broken -- by a company mule.
But the business elite wasn't able to get around the
constitutional right to a trial by jury. In a blue-collar town such as Birmingham, where a maimed or cheated plaintiff had better than average odds of getting a jury of true peers, brilliant courtroom performers such as Hugo Black managed to win severe judgments against the rich and almighty.
Personal-injury Robin Hoods were the community's vital agent for evening the balance of power.
Fittingly, after moving to Washington, Hugo Black would help upend the oligarchs' universe as one of the congressional powers behind the New Deal.
The same white-shoe lawyers who had haggled with him in Alabama courtrooms now mounted constitutional test cases and other obstructions against President Franklin Roosevelt's key programs.
Today, the Republican Contract with America vows to scale back the New Deal's complex vision of government to basic "common sense," as one of the House tort bills is titled.
And while the crackdown on nuisance suits may seem like a long overdue move against citizens' abuses of their freedoms, it is important to remember that inalienable rights have historically been a nuisance where the profit motive is concerned.
The only client Hugo Black represented before the Supreme Court was surely a pest in the eyes of society: an injured black convict laborer, leased by the state like chattel to private coal-mining operations. But that case ended up pioneering the future landmark issue of an indigent person's right to counsel.
Since Hugo Black's day, personal-injury law has evolved from a labor specialty to a middle-class consumer movement. And as plaintiffs' lawyers have organized into a powerful vested interest, it is often hard to detect any civil rights in the litigious whine of our culture's aggressive victims.
The constitutional principle at stake today, however, has remained constant since Hugo Black began insisting on "every citizen's unconditional right to a day in court," as his biographer, Roger K. Newman, describes it, "to resolve any claims against over-reaching corporations."
A case that bridges the gap from that day to this makes the point: The long litigation leading to the 1973 federal court decision that exposed asbestos as a national public-health crisis.
The original plaintiff, a Texas insulation installer who had developed asbestosis, sued 11 manufacturers in 1966 but lost the case.
Had the House's "loser pays" rule been in force then, that worker, assuming he was still alive, might still be writing checks to the industry's legal talent -- if he had been brave or foolish enough to sue in the first place.
Sure, some jury awards are outrageous. But they are the inescapable price of a jury system. Moreover, headline-making punitive damages -- which the tort reform bills would drastically cap -- serve as a kind of civil law pillory, exposing corporate rascals to community scrutiny and perhaps even deterring others from future abuses.
The fact is, corporate accountability would be a casualty of the tort reformers' zeal to discourage lawsuits from going to trial, avowedly in order to unclog the judiciary.
A routine condition of out-of-court settlements is the gag orders that seal the contents of such agreements, including the details of the plaintiff's grievance. Asbestos might have long remained an unchecked hazard if the industry had been able to compensate victims quietly in the privacy of a lawyer's office.
The court is a vehicle not only of justice but also of discovery -- and when the findings are momentous, they can lead to congressional hearings and progressive laws.
Hugo Black had a good populist phrase for the constituency that would really benefit from the package of legal measures now facing the Senate -- household names such as Aetna, Dow Chemical, Johnson & Johnson and Philip Morris, which dominate the membership list of the American Tort Reform Association.
He called them "organized money."
Diane McWhorter is writing a social history of Birmingham, Ala. She wrote this for the New York Times.