The Courthouse Crusade Against Government

Activist conservative judges are seeking to radically reinterpret the Constitution in ways that will drastically limit the powers of government.

The more radical elements of the anti-government movement face a serious problem. They would like to eliminate or drastically reduce many of our basic progressive social programs, like Social Security and Medicare; and they also want to curtail many of the federal government’s regulatory programs. But broad public support for such programs makes it difficult to attack them effectively through the legislative process. So some anti-government activists have turned to the federal courts in an effort to construct a constitutional assault on these programs. Conservative and libertarian judges and legal scholars are promoting a radical reinterpretation of the Constitution that would severely constrain the powers of the federal government. They are attempting a legal end-run around the democratic process to impose their small government views on all Americans.

Anti-Government Extremism in the Courts

Judge Janice Rogers Brown could serve as the poster-child for the anti-government movement’s efforts in the third branch of government: the judiciary. Now a member of the United States Court of Appeals for the District of Columbia, Brown is a jurist intent on radically reinterpreting the Constitution in order to undermine the power of the federal government. For example, she has asserted that the states should not be subject to the Bill of Rights – a view that most legal scholars see as virtually indefensible. In the past, she has also argued for overturning established precedents in cases involving the government's authority to regulate corporations and supported the idea of striking down health and safety laws that might infringe on the rights of business. Even more strangely, she has also attacked the 1937 decisions by the Supreme Court that upheld much of the legislation of the New Deal, calling them a "disaster" that marked "the triumph of our socialist revolution."

Brown’s legal opinions are largely informed by a deep and abiding contempt for government and its role in modern society. She has commented that “where government advances – and it advances relentlessly – freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized....”1 She expanded on these ultraconservative views in a speech she gave in 2000 to the Federalist Society, a leading conservative legal group:

Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption: the loss of civility and the triumph of deceit. The result is a debased, debauched culture, which finds moral depravity entertaining and virtue contemptible.2

It is sobering that President Bush believed that someone with such a radical and paranoid view of government would be qualified to render decisions in one of the highest courts in this country – one often considered a stepping stone to the Supreme Court. Not surprisingly, over 270 law professors opposed the nomination of Judge Brown to the federal bench. Several Democratic senators were outraged enough by Brown's nomination to organize a successful filibuster to block her appointment. However, in 2005, the Senate Republicans threatened the “nuclear option” – to take away the Democrats’ right to filibuster – if they did not agree to procedures to approve several Bush appointees to the bench, including Brown. The Democrats were forced to capitulate in the face of this outrageous tactic and Brown was appointed. She was even talked about as a possible appointee to the Supreme Court. The case of Brown shows just how far conservative administrations are willing to go to put people in the federal courts who are loyal soldiers in the war on government.

Unfortunately, Judge Brown is but one example of Bush's appointment of conservative and libertarian judges with an anti-government political agenda. Another is former Alabama Attorney General William Pryor. One legal scholar described Pryor as a man who "was against almost every progressive reform of the past half-century."3 The Atlanta Journal-Constitution editorialized that Pryor was "the perfect Christian right extremist." He was, for example, the only attorney general in the 50 states who argued for striking down the Violence Against Women Act maintaining that it was a problem that did not have any national impact. He testified in Congress urging the repeal of provisions of the Voting Rights Act. He filed a brief in support of Nevada’s effort to block remedies for violations of the Family and Medical Leave Act. He also argued against federal enforcement of civil rights and worker protection laws. And again he was the only state Attorney General who challenged significant portions of the Clean Water Act and the Endangered Species Act. He also filed a brief with the Supreme Court, arguing that the Constitution's Commerce Clause doesn't give Congress the authority to protect endangered species. Clearly Pryor has a deep hostility toward the federal government and its regulatory efforts to protect, women, minorities, and the environment.

As with Judge Brown, several Democratic senators were appalled by Pryor’s extremist legal views and organized a filibuster to block his appointment. But like Brown, Pryor was eventually elevated to the bench when the Republicans threatened to revoke the Democrats’ right to filibuster. Pryor and Brown were merely two of over a hundred nominees to federal district and appellate courts – many of whom also had ultra-conservative legal views – that were approved in the first Bush administration alone.

The Rise of Activist Conservative Judges

The federal courts have now become a major battleground in the effort to weaken government and reduce its powers. The courts are arguably the most powerful branch of government; they are the final decision-makers in many policy areas – abortion, the death penalty, environmental protection, civil rights, gun control, and gay rights, to name just a few. There is virtually no way to overturn their decisions. And unlike with our elected officials, the public has no way to get rid of these policymakers. So this is the high ground in American politics and well worth fighting for.

Some history is useful here. For decades, conservatives have railed about the abuses of liberal “activist” judges and justices. They have complained that these jurists have stretched their interpretations of the Constitution to support wrong-headed liberal policies like abortion, school busing, and affirmative action. So from the Reagan administration onward, conservatives have been appointing so-called “strict constructionists” to the federal courts – judges pledged to stick to very narrow and limited interpretations of the Constitution.

But all the attention being paid to the notion of strict constructivism and to hot-button issues like abortion has obscured something else that has been going on in the courts. In recent years, a new conservative legal philosophy has emerged – one that few Americans are aware of. Conservatives are no longer content with strict constructionism but have moved on to promote an intentionally activist orientation. But now it is a right-wing activism. Now it is many right-wing judges who are striving to stretch and radically reinterpret the Constitution to promote their own political agenda. Supreme Court Justice Antonin Scalia once stated candidly that “I am not a strict constructionist, and no one ought to be.”4 One of the main goals of these judicial activists is to limit the scope and power of the federal government. They want to both rein in the power of the federal courts and also to launch an attack against the power of Congress and its ability to pass regulatory laws. This new conservative, anti-government judicial activism, if successful, could have profound and widespread political implications.

The Federalist Society

To understand where this new conservative activist approach in the courts has come from, we need to step back for a moment and consider the role that the Federalist Society has begun to play in judicial politics in United States. The Federalist Society is a loose network of law school professors, law students, lawyers, and judges who are all interested in actively promoting a more conservative/libertarian legal philosophy. The Society has attracted little public attention, in part because it has tried to keep a low profile, preferring to describe itself as an innocuous and powerless "debating society." But in reality it is an increasingly powerful organization that is helping to push the law and the judiciary to the far right and in the process is beginning to reshape the legal landscape in United States. The Society is generously funded by Richard Mellon Scaife and other wealthy conservative patrons who fully appreciate its potential impact of the judiciary and on American law.

Many of the Society's members espouse a new constitutional philosophy that goes far beyond strict constructionism. These Federalists are not content to simply reverse the rulings of liberal activist courts – they want to impose their own form of conservative and libertarian activism on the courts. For instance, they not only want to broadly limit the power of the courts, they also want to drastically limit the role of the federal government in society and they have begun to attack the legal and constitutional underpinnings of much of modern government. They believe the federal government has exceeded its constitutional powers in establishing the social welfare policies and regulatory policies of the New Deal and the Great Society. (It is revealing that one of their forums had the title "Rolling Back the New Deal.") They would not hesitate to overturn decades of precedent and settled law in order to undermine many of the laws and regulations that currently protect our environment, health, and workplaces. For example, in some of their forums and publications, members of the Society have called for such things as the abolition of the Securities and Exchange Commission and for the drastic limitation of the regulatory powers of the Environmental Protection Agency and the Occupational Safety and Health Administration – all proposals that are very far from the mainstream political ideas of most Americans.

The reach of the Federalist Society was particularly clear in the administration of George W. Bush, in which many of his appointees were active members. During his first term, these officials included:

Attorney General John Ashcroft

Secretary of the Department of Energy Spencer Abraham

Secretary of the Department of Interior Gale Norton

Solicitor of Labor Eugene Scalia

General Counsel of the Department of Education Brian Jones

Deputy Attorney General Larry Thompson

Solicitor General Ted Olson

Assistant Attorney General for Legal Policy Viet Dinh

Inspector General of Department of Defense Joseph Schmitz

Asst. Attorney General for Environment and Natural Resources Thomas Sansonetti

Principal Deputy Solicitor General Paul Clement

Associate Deputy Attorney General Ted Cruz

Director of National Institute of Justice Sara Hart

Deputy White House counsel Timothy Flanagan

Associate White House counsel Brett Cavanaugh

Associate White House counsel Bradford Berenson

Assistant White House counsel Noel Francisco

General Council Department of Energy Lee Liberman Otis

Deputy Secretary Department of Agriculture James Moseley

Assistant Secretary Department of Agriculture William H. Lash III

General Council Department of Education Brian Jones

Assistant Secretary Department of Education Gerald Reynolds

General Council Department of Health and Human Services Alex Azar III

Clearly membership in this club functioned as a passport to power in the Bush administration. But more important than these administrative appointments were the Federalists tapped for judicial appointments. Soon after his first election, George Bush organized the judicial selection committee made up of White House and Justice Department lawyers, most of whom were members of the Federalist society. Not surprisingly, 17 of the first 20 candidates that President Bush nominated to the federal judiciary were recommended by the Federalist society.5

Given this kind of reach, the Federalist Society might seem to some people like some right-wing legal cabal, but it is too open and too loose a network to really fit that description. It is interesting, however, that the conservative activist Grover Norquist once wryly commented that "If Hillary Clinton had wanted to put some meat on her charge of a ‘vast right-wing conspiracy,’ she should have had a list of Federalist Society members and she could have spun a more convincing story.”6 

The Takings Movement

How far are these right-wing activist judges willing to go to stretch and distort the Constitution in support of this anti-government ideology? Consider the disturbing implications of the “takings” legal movement. The Fifth Amendment has a “Takings Clause” that stipulates that the government must pay private property owners if it “takes” or expropriates private land for public use. A typical example is when a government takes property by eminent domain to use for a freeway or for an urban renewal project. The meaning of this clause has always been quite specific and very narrow – if the government physically takes your land, it must pay you. But libertarian and conservative legal scholars have tried to extend the idea of takings to mean that the government must pay private property holders, such as corporations, for complying with regulations. They argue, for instance, that if complying with an environmental regulation limits the way a business can use its land, that is a “taking” of the land and the government must compensate them.

The political intent of this radical reinterpretation of the Takings Clause is to make government regulation of business so expensive as to be impractical. If a government had to pay businesses to comply with regulations it would soon go bankrupt – so if this interpretation became common, governments would have to drastically reduce their regulatory efforts, particularly as they affect land use. As William Greider has explained:

Because any new regulation is bound to have some economic impact on private assets, this doctrine is a formula to shrink the reach of modern government and cripple the regulatory state – undermining long-established protections for social welfare and economic justice, environmental values, and individual rights. Right-wing advocates frankly state their objective – restoring the primacy of property against society’s broader claims.7

Let’s consider a specific example of how this works. In 1994, the Florida Rock company sued the federal government because the U.S. Army Corps of Engineers denied them a permit to mine limestone from 1,500 acres of wetland in the Everglades.8 The Corps argued that pollution from the mining would destroy large amounts of wetlands that filter water for the Biscayne aquifer and would severely damage critical habitat in the Everglades ecosystem. They also pointed out that even with these restrictions, the company had received offers for the land that were twice the price it had paid. And yet the Federal Circuit court ruled that a “partial takings” of the land had taken place and required the government to pay tens of millions of dollars to Florida Rock for these damages. In one fell swoop, this decision effectively abandoned over a hundred years of the courts’ traditional interpretation of the Takings Clause. This ruling was described by one law professor as “an extremely destabilizing decision, exposing all wetlands regulations, indeed all environmental and land use regulation, to compensation claims.”9

The intellectual godfather of this “takings” attack on government regulation is Professor Richard Epstein of the Chicago Law School. His views make clear just how wide-ranging and revolutionary this constitutional reinterpretation really is. He has written that extending the Takings Clause renders “constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, [and] progressive taxation. … It will be said that my position invalidates much of the 20th century legislation, and so it does.”9 In an interview, he justified this extreme position by arguing that “Most of economic regulation is stupid … What possible reason is there for regulating wages and hours? If my takings doctrine prevails, you have no minimum wage laws. That’s fine. You’d have an OSHA a tenth of the size. That’s fine too. You’d have no antidiscrimination laws for privileged employees, which would be a godsend.”11 This notion of “regulatory takings” is so peculiar that even some conservatives have backed off from it. One pre-eminent conservative legal scholar, Robert Bork, has complained that Epstein’s views are “not plausibly related to the original meaning of the takings clause.”12

But the absurdity of this idea has not stopped many right-wing groups from proselytizing for its use. The Federalist Society is very active in recruiting and training lawyers to pursue takings cases in the courts; and several conservative foundations have contributed large amounts of money to further these efforts. Also, the Foundation for Research on Economics and the Environment has sponsored all-expenses-paid seminars on the new takings legal philosophy that have been attended by thousands of federal judges.13 Even more troublesome is that Supreme Court Justice Antonin Scalia has expressed sympathy for this notion of “regulatory takings” and some legal experts have estimated that four of the nine current Justices agree with at least parts of this highly questionable legal theory.

Back to the 1930s

Currently, the top priority of anti-government legal activists is a constitutional challenge to President Obama’s health care reform bill. Several suits have been brought in the federal courts alleging that the bill’s requirement that all individuals have health insurance violates the Constitution. One federal district court judge has already ruled in favor of this argument and it seems inevitable that this challenge is headed to the Supreme Court. But while this legal challenge has garnered a great deal of publicity, what has often been ignored is that this particular effort is only the tip of a very deep iceberg. Conservative legal activists have been mounting a wide-ranging constitutional attack on the powers of the federal government, an assault that could undermine much of the progressive legislation passed during the last 75 years.

For some years now, right-wing legal scholars and conservative judges have been trying to reinterpret parts of the Constitution in their efforts to undermine the regulatory powers of the federal government. Their main target has been the so-called “Commerce Clause” of the Constitution, the passage that empowers the federal government to regulate commerce between the states. Before the New Deal, the federal courts had a very strict interpretation of this clause that confined Congress to regulating only those activities that directly involved interstate commerce. However, a 1937 Supreme Court decision – Wickard v. Filburn – created a broader interpretation of this clause that gave Congress the power to regulate many activities located within states, such as factories and employer-employee relations.14 This has been the conventional interpretation of this clause for over 70 years and it is the constitutional basis for many modern federal laws, including environmental regulation and much of the legislation that protects the rights of women, workers, and minorities.

Anti-government judicial activists are now committed to overturning this interpretation of the Commerce Clause, and with it many of the elements of the New Deal. Specifically, by returning to the narrow pre-1937 interpretation, they hope to overthrow such programs as federal minimum wage laws and requirements that employers participate in Social Security.15 Despite the radical nature of this plan, it is clear that these conservatives have some sympathizers in the federal judiciary and that they are making some progress in their efforts. One federal district judge blocked the federal government from enforcing toxic waste cleanup requirements, because he decided that the chemical manufacturing site involved was really just a local real estate matter, not an economic activities subject to federal control. In 2003, U.S. Court of Appeals for the 9th Circuit issued three decisions that gradually narrowed what was constitutional under the Commerce Clause.16 Also, the Supreme Court itself has declared that the Gun Free School Zones Act exceeds Congress’ constitutional powers.

On the Supreme Court, Justice Clarence Thomas has often expressed sympathy with this revisionist attempt to severely restrict the powers of the federal government. In three separate cases he has argued that the federal government's attempts at regulation are "at odds" with the Constitution. If his views were to become common on the court, this would put in jeopardy a wide range of current laws, including the Americans with Disabilities Act, the federal minimum wage, bans on child labor, and anti-discrimination legislation.

Many legal scholars and political commentators find this a very disturbing trend. Adam Cohen, for example, has criticized what he has called “the campaign to undo the New Deal.”

[C]onservatives are making progress in their drive to restore the narrow view of federal powers that predated the New Deal – and render Congress too weak to protect Americans on many fronts. … In pre-1937 America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This is not an agenda the public would be likely to sign onto today if it were debated in an election. But conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right. Judges could … declare laws on workplace safety, environmental protection and civil rights unconstitutional.17

The Tort Reform Sham

There is another legal strategy being promoted by government haters that is very different from the ones just described. It is a strategy of limiting public access to the courts. It is really a very clever idea: instead of trying to limit the power of the courts, you simply block people’s access to that power. Without access, the power of the courts cannot be used in ways that conservatives oppose. A good example of this attempt to deny access to the courts has been the intense and widespread political campaign to pass legislation on the federal and state levels to limit citizens’ right to sue businesses – under the rubric of so-called “tort reform.” A particular effort has been made to limit people’s abilities to participate in class-action suits. These suits have been one of the most important and useful tools employed by citizens to fight the abuses of business and other institutions. Because of the high expense of litigation and the enormous legal resources of big business, individuals are often not in a position to successfully sue. Class action suits allow harmed individuals to band together and more effectively seek justice. As former United States Supreme Court Justice William O. Douglas has explained: "the class action is one of the few legal remedies the small claimant has against those who command the status quo."18

Class action and other suits have a long history of helping the average American get justice and compensation for wrongs committed against them. They have been successfully used by people in neighborhoods poisoned by toxic waste spills, patients prescribed medicines with undisclosed dangerous side effects, employees who have been victims of systematic racial or sexual discrimination, consumers who have been seriously hurt by defective and dangerous products, people who have lost their savings to fraudulent investment practices, and consumers who paid greatly inflated prices because of monopolistic and unfair business practices. And many people not even directly involved in these suits have greatly benefited from them. Thousands of dangerous products have been removed from the marketplace, thus preventing future injuries and the medical costs associated with them. Our cars and hospitals are much safer due to citizen suits. Millions of dollars have been recovered in suits over various consumer fraud schemes. Perhaps more importantly, fear of lawsuits has prompted many businesses to produce safer products and to behave in more responsible ways to their consumers and their employees. In short, citizen lawsuits have helped to protect us all.

Not surprisingly, however, the business community does not like class-action suits and it has organized a well-funded and highly coordinated campaign to promote legislation that would limit the ability of people to file these kinds of lawsuits. This is how one consumer group described this extensive political effort:

The huge corporate campaign against consumer access to the courts is approaching its 25th year. [It] includes the creation of new trade associations of companies pushing for state as well as federal legislation to limit consumer rights, hundreds of lobbyists pressuring congressional and state lawmakers, the creation of front groups across the country called citizens against lawsuit abuse (whose members are actually businesses), new think tanks such as the Manhattan Institute who hire authors to write books and reports attacking the civil justice system, and strategic television and radio advertising at the state and national level.19

The Republican Party signed onto this effort to limit the public’s ability to sue, especially through class-action suits. In the mid-nineties, Congress passed legislation limiting the courts’ ability to hear class action suits by immigrants seeking to fight against deportation. Another bill limited the abilities of legal services lawyers to bring class actions suits on the behalf of their poor clients. And in 1995, the Republicans passed the Private Securities Litigation Reform Act, over the veto of President Clinton. This law severely restricted investors' ability to sue companies for securities fraud. In doing so, it greatly undermined the ability of investors to hold corporate officials, accountants, and auditors accountable for such activities as deceptive bookkeeping, lying to investors about profits, and other forms of investor fraud. With little threat of investor suits, and with the SEC essentially asleep on the job, it is little wonder that more and more corporate officials soon felt free to cross the line over into illegal and fraudulent behavior. Eventually a whole host of companies, including Enron, WorldCom, ImClone, Global Crossings, Adelphi Communications, Xerox, Merck, Bristol-Myers Squibb, and Qwest were caught engaging in just these kinds of investor frauds – costing their investors billions of dollars in losses.

Unsatisfied with these political victories, the business community and the Republican Congress then set its sights on a higher goal: reining in class action suits across the board. They introduced a bill to do just that in 2004. It was entitled, with typical cynicism, as the “Class Action Fairness Act.” But its intent was far from fair. It would forbid citizens from filing major class action suits in state courts, and force them into the already overburdened federal courts. Moreover, federal judges do not usually certify cases that are based on state consumer protection laws, which means these cases would be blocked. Public Citizen President Joan Claybrook commented that “This is an issue of basic fair play. The American Revolution was fought, in part, over no access to the civil courts so that citizens could redress their grievances. This is a right that is essential in a democracy. But this right will, in many cases, literally be taken away by this legislation.”20

Over eighty different consumer, senior, environmental, labor, and civil rights organizations worked against the bill. Several state and federal judge associations and many state attorneys general opposed it as well. The New York Times eventually weighed in with an editorial sharply condemning the bill:

Under the phony banner of "tort reform," this act is a legislative gift to wealthy special interests. It would make it harder for Americans to win redress in court for corporate violations of state civil rights, health, consumer and environmental protection laws. The act's core provisions would permit big polluters and other companies to delay justice, or even escape justice entirely, by moving most class-action lawsuits from state courts to the overburdened federal courts, which are less familiar with the disputed legal and factual issues. The act would also impose new litigation hurdles and burdens on plaintiffs.21

But powerful forces were amassing to pass the bill. The Chamber of Commerce made passage of this bill their number one priority in 2004 and literally hundreds of business lobbyists were pressuring Congress to pass it. Also, an official of the National Association of Manufacturers stated that this bill was “the biggest thing in years."22 With all of this lobbying pressure and the dominance of Republicans in Congress, it was only a matter of time until this bill was passed. After the bill passed in early 2005, The New York Times observed that “Having spent tens of millions of dollars lobbying for this bill, the United States Chamber of Commerce and allied business groups are understandably pleased. They got what they paid for.” 23

The conservative effort to deny court access to citizens is particularly galling when considered along with their efforts to weaken and roll back the regulations that are supposed to protect the public. When government fails to protect us from cars that roll over, water that poisons our children, and drugs that make us sick, then people can only resort to lawsuits to defend themselves. Conservatives have been aghast when shareholders have sued corporations because the illegal and unethical actions of company officers have cost investors their life savings. But this happened because the Securities and Exchange Commission has been asleep on the job, ignoring these problems. Tort reformers also bemoaned the way lawyers quickly jumped in to sue the makers of the drug Vioxx when it was shown that it caused thousands of unnecessary deaths. But those suits would not have been necessary if the FDA had been on the job and noticed those dangerous side effects sooner. If conservative administrations are going to neglect to protect citizens through vigorous regulation, then it is doubly unfair to also deny them the ability to seek justice in the courts. Citizen lawsuits are not the “plague” that conservative propaganda would have us believe. They are a form of citizen power – and the more we are denied their use, the less powerful and less safe we all become.

Irreversible Decisions

What we are witnessing today is nothing less than a conservative campaign to radically change the law and the legal system of the United States in a way that greatly reduces the power of government and citizens. The political right has engaged in a relentless effort to appoint libertarian-leaning judges and justices that adhere to a minimal-government philosophy. Fortunately, these appointments have come to an end, at least temporarily, with the election of President Obama. But the damage has already been done. These “radicals in robes” have been appointed for life, and many are in their fifties and likely to stay on the job for several more decades. The public is powerless to replace them or to overturn their decisions. There is no democratic accountability here. We will have to live with their legal rulings – and their assaults on government – for the many years to come.

 


1 Janice Rogers Brown, “Hyphenasia: the Mercy Killing of the American Dream,” Speech at Claremont-McKenna College (Sept. 16, 1999), p. 3.

2 Janice Rogers Brown. “A Whiter Shade of Pale,” Speech to Federalist Society (April 20. 2000).

3 Herman Schwartz, Right Wing Justice: The Conservative Campaign to Take Over the Courts, (New York: Nation Books, 2004) p. 252.

4 Dana Milbank, “Scalia Showing His Softer Side,” The Washington Post, March 15, 2005; Page A02.

5 Herman Schwartz, Right Wing Justice. (New York: Nations Books, 2004), p. 197.

6 Thomas Edsall, "Federalist Society Becomes a Force in Washington," the Washington Post, April 18, 2001 page A04.

7 William Greider, “The Right and U.S. Trade Law: Invalidating the 20th Century,” The Nation, October 15, 2001.

8 See a description of this case in Sharon Buccino, et al., “Hostile Environment: How Activist Judges Threaten our Air, Water, and Land,” Natural Resources Defense Council, July 2001, p. 12.

9 Ibid. p. 12.

10Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985), p. X.

11 Greider, “The Right and U.S. Trade Law.”

12 Buccino, “Hostile Enviroment,” p. 2.

13 Herman Schwartz, Right Wing Justice, p. 221.

14 Adam Cohen, “What's New in the Legal World? A Growing Campaign to Undo the New Deal,” New York Times, December 14, 2004, p. A30.

15Cohen, “What's New in the Legal World? p. A30.

16 Jacob Sullum, “Pot Luck: A victory for federalism,” ReasonOnline, December 19, 2003, http://www.reason.com/sullum/121903.shtml

17 Cohen, “What's New in the Legal World? p. A30.

18 About Class Action, p. 1.

19 Promoters, p. 3.

20 Joan Claybrook, “Business-Backed Class Action Bill Locks Consumers Out of Court,” Common Dreams Progressive News Wire, Feb. 7, 2005 http://www.commondreams.org/news2005/0207-11.htm

21 New York Times, October 22, 2003.

22 Common Dreams,

23 “A Dismal Class-Action Finale, New York Times, February 12, 2005, p. A30.