Consumer Law

Is Obama's Office of Legal Policy Pick a TortDeformer?

By Kia Franklin

From the LA Times:

The likely nominee to head [The Department of] Justice's Office of Legal Policy, Mark Gitenstein, worked as a lobbyist for the [Chamber of Commerce] between 2000 and 2008, helping his firm earn more than $6 million in fees, according to federal lobbying records. The business alliance has pushed the White House and Congress to appoint judges and enact legislation that would make it harder for plaintiffs to sue large corporations and collect large damage awards, raising concerns from some activists.

Gitenstein, a partner at the Mayer Brown law firm in Washington, was a longtime senior aide to Vice President Joe Biden. In recent years, he also has served as counsel to the chamber's Institute for Legal Reform, which pushed for changes in federal litigation rules and adding business-friendly judges to state courts.

The OLP advises the administration on judicial selection and plays a formative role in shaping and setting the administration's domestic legal policy initiatives. If appointed, Gitenstein would have to recuse himself from issues related to his lobbying on behalf of the business community, which means all sorts of tort "reform" issues. Is this possible? If you look at the scope of influence that the tort "reform" movement has had in discussions about legal "reform" and the civil justice system, I have trouble figuring out just how and when he'd not have to recuse himself.

Many people in the civil justice world are telling the President and the general public why they don't think that Gitenstein's recusal from blatantly tort "reform" issues does enough to ensure compliance with Obama's ethics standard. Public Citizen's David Arkush wrote a persuasive letter to the President, and below is an excerpt:

You have called for a legal system that shows compassion for those with relatively little power, but Gitenstein has lobbied to strengthen the legal rights of the powerful at the expense of the powerless. You have called for greater accountability in the financial services industry, but Gitenstein has fought accountability for financial institutions...

OLP?s role in judicial selection also makes Gitenstein an inappropriate candidate. The Chamber of Commerce has campaigned for more than thirty years to populate the courts with pro-business judicial activists?and in particular judges who enact its vision of ?legal reform.? A lobbyist for the Chamber on those very issues should not be put in a position to influence the selection of judges. The appointment would create the appearance, if not the reality, that judicial nominees will tend to favor the powerful at the expense of ordinary Americans.

I also liked Natasha Chart's post over at OpenLeft:

[BMA is] a license for judges on a corporate payroll to interpret and enforce laws (contracts) written by corporations. You step into a binding mandatory arbitration agreement, you might as well be living in the United States of AT&T, because the only point of the arbitration system is to protect corporate profit. Justice and individual rights hardly enter into it.

More of our social contract is covered by these agreements all the time. It's a quiet, private takeover of the function of the judiciary's role in consumer protection and employment agreements. It's a theft of democracy that excuses are made for because the courts are overburdened and underfunded; such is the story of all our public infrastructure.

Indeed, maybe one of the Senators at the confirmation hearing can ask Gitenstein how he feels about the case of Jamie Leigh Jones, the Halliburton/KBR employee who was raped in Iraq, stuffed in a shipping container under guard to try keeping her quiet, and couldn't even sue for damages because of the arbitration agreement in her employment contract...If he's in favor of this, Gitenstein shouldn't be anywhere near the Justice Department's strategic planning, nor the judicial hiring recommendations made by the OLP.

Truth be told, Gitenstein has got a heavy-hitter list of supporters due to his notable civil rights record, including Professors Laurence Tribe and Chris Schroeder, and Walter Dellinger, and Judge Abner Mivka. But as a respected colleague pointed out, while having a strong civil rights/civil liberties record is absolutely critical for this position, it is not the ultimate litmus test for whether he's a good fit for the OLP. Just as important is his stance on other civil justice issues like binding mandatory arbitration.

Indeed, binding mandatory arbitration isn't just a consumer issue. It's also a civil rights issue. So how can one fully support civil rights without also supporting a person's ability to enforce those protections in the public court system? Under binding mandatory arbitration "agreements" (although Fonza Luke's story reminds us that "agreement" is definitely a misnomer) employees' important civil rights claims are derailed and sent to often bogus "company courts" instead. What's the point of the law if it can't be enforced?

This nomination is definitely something to keep a close eye on.

Full post as published by TortDeform.com on February 06, 2009 (boomark / email).