Obviously—and this has been said all day long—protecting citizens’ rights to access to justice is essential to our democratic system of government. What I want to do today is to share some thoughts with about how political, judicial, and commercial influences have contributed to tort reform and related developments. I begin with a slide with a picture, partly because I want to be like Judith Resnik, and also because when I thought about what I wanted to speak about, I recalled a TV commercial I saw around 1979 when I graduated from law school. There was an empty playground in the commercial, with a chain link fence around it, and no kids in sight. This ad was brought to us by the insurance companies of America, and the paraphrased message was: Greedy plaintiffs lawyers are bringing frivolous lawsuits, cities are being forced to pay exorbitant settlements, leading to insurance premiums going up and up and up, forcing cities to close the playgrounds.

Even though I was not an academic yet, I knew there was something wrong with this picture and that the empty playgrounds probably had less to do with greedy lawyers and more to do with corporate interests. My theme really is not a novel one because Steve Daniels already talked about that this morning, and many have written for decades now ¹ about how the public relations campaign waged by commercial and political entities led to a narrative that turned the public against the plaintiff’s bar, which in turn created a climate that provided cover for state and local legislators, judges, and rule-makers, to enact laws and rules that impede access to justice.

Of course, no talk about tort reform can begin without a quote from Shakespeare’s Henry VI: “The first thing we do, let’s kill all the lawyers.” ² There has been a lot of debate about exactly what Shakespeare meant. Was he referring to lawyers as mere parchment pushers who worked to the detriment of the people? Or was he talking about lawyers as a bulwark against tyranny? No matter what Shakespeare meant, I think we can probably agree that right now the modern translation of this quote is “Let’s kill all the plaintiffs’ lawyers until we need one.”

When we think about the evolution of tort reform, we see the seeds of that evolution in the 1960s—there was a tremendous expansion of public and private rights in the early 1960s and on into the 1970s. On the federal statutory level, we saw the Equal Pay Act of 1963, ³ Title VII, ⁴ and the Voting Rights Act of 1965, ⁵ enacted. Regarding private rights, we saw Chief Justice Roger Traynor of California writing a series of opinions that eventually led to strict products liability law being recognized by courts around the country. We also saw a very important procedural development in 1966: the amendment to Rule 23, which allowed for expanded use of damages class action suits. ⁶ Rule 23(b)(3), together with the expansion of public and private rights, struck a one–two punch against corporate America. Another important development around this time was Bates v. Arizona, the 5–4 decision of the Supreme Court which allowed lawyer advertising and provided the opportunity for more entrepreneurial lawyering and the like. ⁷ All of these developments led to the tort reform reaction. Although the tort reform movement had been going on since the 1950s, it really accelerated after these developments.

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