Between Fraud Heaven and Tort Hell: The Business, Politics, and Law of Lawsuits
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In the 1970s, consumer advocates worried that Alabama's weak regulatory structure around consumer fraud made it a kind of "con man's heaven." But by the 1990s, the battle cry of regulatory reformers had reversed, as businesspeople mourned the state's decline into "tort hell." Debates about the correct balance of power among consumers, businesses, and the state continue to shape political contests in both Alabama and on the broader national stage today, whether contextualized under the aegis of "consumer protection," "access to justice," "tort reform," protecting "free enterprise," or cultivating a positive "business climate."
This dissertation argues for analyzing such matters in terms of a regulatory ecology, following the interconnections across institutions, including formal rules of civil procedure as well as informal codes of conduct, that shape the law of lawsuits within the American civil justice system. Drawing on case files, interviews, and archival sources, it traces the development of Alabama's first consumer-protection law and regulatory agency in the early 1980s, the construction and deconstruction of a comprehensive state tort-reform package in 1987, the rise of tort lawsuits and its invigoration of Alabama's trial-lawyer bar, and the transformation of the Alabama Supreme Court in the 1990s. It then analyzes how political narratives, fashioned in part by powerful business lobbies, molded the terms of the tort-reform debate at the state and national levels in ways that effectively swayed public opinion and created favorable conditions for successful tort reform legislation.
The dissertation does not propose a regulatory agenda; rather, it concludes that interdisciplinary perspectives on regulatory governance, drawing insights from legal, political, and business history as well as other social science disciplines, better frame problems than more simplistic assessments of tort reform. Tort lawsuits blossomed in Alabama where other avenues for resolving regulatory issues or expressing dissent closed. Tort reform is likely to unleash new pressures for addressing perceived instances of unfairness in the marketplace.
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