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Cross-posted from Tort Deform: The Civil Justice Defense Blog

"DATE: August 23, 1971

TO: Mr. Eugene B. Sydnor, Jr., Chairman, Education Committee, U.S. Chamber of Commerce

FROM: Lewis F. Powell, Jr.

This memorandum is submitted at your request as a basis for the discussion on August 24 with Mr. Booth (executive vice president) and others at the U.S. Chamber of Commerce. The purpose is to identify the problem, and suggest possible avenues of action for further consideration."

More after the jump...

DATE: August 23, 1971

TO: Mr. Eugene B. Sydnor, Jr., Chairman, Education Committee, U.S. Chamber of Commerce

FROM: Lewis F. Powell, Jr.

This memorandum is submitted at your request as a basis for the discussion on August 24 with Mr. Booth (executive vice president) and others at the U.S. Chamber of Commerce. The purpose is to identify the problem, and suggest possible avenues of action for further consideration.

Dimensions of the Attack
No thoughtful person can question that the American economic system is under broad attack.1 This varies in scope, intensity, in the techniques employed, and in the level of visibility.
There always have been some who opposed the American system, and preferred socialism or some form of statism (communism or fascism). Also, there always have been critics of the system, whose criticism has been wholesome and constructive so long as the objective was to improve rather than to subvert or destroy.
But what now concerns us is quite new in the history of America. We are not dealing with sporadic or isolated attacks from a relatively few extremists or even from the minority socialist cadre. Rather, the assault on the enterprise system is broadly based and consistently pursued. It is gaining momentum and converts.

Sources of the Attack
The sources are varied and diffused. They include, not unexpectedly, the Communists, New Leftists and other revolutionaries who would destroy the entire system, both political and economic. These extremists of the left are far more numerous, better financed, and increasingly are more welcomed and encouraged by other elements of society, than ever before in our history. But they remain a small minority, and are not yet the principal cause for concern. (link)

Later on the memo continues....

Neglected Opportunity in the Courts
American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.
Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business. Perhaps the most active exploiters of the judicial system have been groups ranging in political orientation from "liberal" to the far left.
The American Civil Liberties Union is one example. It initiates or intervenes in scores of cases each year, and it files briefs amicus curiae in the Supreme Court in a number of cases during each term of that court. Labor unions, civil rights groups and now the public interest law firms are extremely active in the judicial arena. Their success, often at business' expense, has not been inconsequential.
This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.
As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort. (link)

The above memo is known as the Powell Memo, also known as the Powell Doctrine, written by Supreme Court Justice Lewis Powell two months before he was nominated to the Court by president Nixon in 1971.

Sometimes it is easy to feel like the rhetoric about a vast coordinated campaign by business interests to indoctrinate the public are overblown. Many who read this blog would agree that there is some coordination amongst business interests. The only real question is just how coordinated, how deliberate, and how large this coordinated campaign is.

While for most movements there is no particular place in time in which they definitively "begin," this memo marks the moment in time, that is at least the beginning of the beginning of the modern tort "reform" movement. If you’ve ever wanted an excuse to be a conspiracy theorist, keep reading the memo that framed the viewpoint and initiated the strategy of the modern tort "reform" movement in 1971.

It should give every opponent to the evisceration of our civil justice system by the self-labeled tort "reform" movement a long moment of pause read just how coordinated and deep the agenda of the corporate lobby can go.

They have an enormous head start, they have more money, but hey, at least we have access to their first strategy memo!

Below, read a short introduction to the memo by ReclaimDemocracy.org. This memo is so long and so interesting that I have decided to make it into a series on Tort Deform... so there’s more to come.

Introduction
In 1971, Lewis F. Powell, then a corporate lawyer and member of the boards of 11 corporations, wrote a memo to his friend Eugene Sydnor, Jr., the Director of the U.S. Chamber of Commerce. The memorandum was dated August 23, 1971, two months prior to Powell's nomination by President Nixon to the U.S. Supreme Court.
The Powell Memo did not become available to the public until long after his confirmation to the Court. It was leaked to Jack Anderson, a liberal syndicated columnist, who stirred interest in the document when he cited it as reason to doubt Powell's legal objectivity. Anderson cautioned that Powell "might use his position on the Supreme Court to put his ideas into practice...in behalf of business interests."
Though Powell's memo was not the sole influence, the Chamber and corporate activists took his advice to heart and began building a powerful array of institutions designed to shift public attitudes and beliefs over the course of years and decades. The memo influenced or inspired the creation of the Heritage Foundation, the Manhattan Institute, the Cato Institute, Citizens for a Sound Economy, Accuracy in Academe, and other powerful organizations. Their long-term focus began paying off handsomely in the 1980s, in coordination with the Reagan Administration's "hands-off business" philosophy.
Most notable about these institutions was their focus on education, shifting values, and movement-building - a focus we share, though usually with contrasting goals. One of our great frustrations is that "progressive" foundations and funders have failed to learn from the success of these corporate institutions and decline to fund the Democracy Movement that we and a number of similarly-focused organizations are attempting to build. Instead, they overwhelmingly focus on damage control, band-aids and short-term results which provide little hope of the systemic change we so desperately need to reverse the trend of growing corporate dominance. (linK)

Originally posted to cyrus dugger on Wed Jan 10, 2007 at 09:28 AM PST.

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Comment Preferences

  •  Odd, I was just reading up on tort "reform" (3+ / 0-)
    Recommended by:
    SarahLee, bigchin, willb48

    manuevers last week.  Your intro of the Powell Doctrine and summary of the corporate world start in taking those words seriously is terrific.

    I consider the corporate push to proactively protect themselves from legal liabilities to be more of a confluence of similar interests, rather than a true coordination of efforts.  So, as one or a few elite grouping(s) crank an astroturf political/media thinktank into existence, others would see the benefits and attempt to support such efforts - perhaps create some of their own, various lobbying groups would specialize in certain sectors that happened to have players with similar legal worries, etc.

    Of course, this fits in such a swell manner with the multi-decade Republican party growth in minimizing risks for private-profits-at-any-cost-to-the-public governing ideology.  Yay.

    I'm most interested in learning of efforts to expose this for the sham it is - how to break down the illogically built up protections which have already begun to unbalance the legal/financial exposure of pharma and others to the effects of their products in the marketplace (and workplace).

    So, please stay where you are. Don't move and don't panic. Don't take off your shoes! Jobs is on the way.

    by wader on Wed Jan 10, 2007 at 09:38:45 AM PST

  •  Harvard study casts doubt on whether tort (7+ / 0-)

    reform is even needed. Link here: http://www.hsph.harvard.edu/...

  •  Always call "Tort Reform" what it really is (5+ / 0-)

    Whenever debating this issue be sure to always call "Tort Reform" what it really is  "corporate Cost Shifting/Corporate welfare".  

    We, as a society take it as a cultural truth that there are too many lawsuits and overzealous lawyers are ruining it for everyone.  Thus most people when asked causully about "tort reform" are all in favor of it.  But if you can engage them on the nitty gitty; most would hate its results.   Thus the key is to help them see that.

    He's the brilliant example (of a real case mind you)my Torts professor used that was in a large part why I personally saw the light:

     Back when Coke bottles were made of glass, certain number of them would occassionaly explode upon opening sending shards of glass flying (Much like the occassional champagne bottle does today)

    This Explosion was not caused by mishandling, nor a defect in the bottle, but it was simply a random occurance of several factors all impossible to predict.  So no matter how careful Coca-Cola Inc. is (and they are being as careful as possible)  this will continue to happen.  

    Now suppose a woman opens just such an explosive bottle and the glass shrps do terrible damage to the tendons in her wrist causing $50,000 in medical damages (for surgery and the like).  She sues Coke for damages, should they have to pay?

    Now most people's first instinct is to say "hell No they didn't do anything wrong!"  This is because countless hours of TV drama have taught us to the view the  Tort system as a way to punish wrongdoers not restore economic inequities.

    So now in proper Socratic fashion, you ask the follow-up question:
    "so you think it is fair that the woman, a minimum wage waitress, say,  should just be stuck with a giant medical bill?  What did she do wrong?"

    and that too offends most people's sense of justice as well.  Now this is where you point out that SOMEBODY has to pay the $50,000 that loss occured and someone has to bear it, fair or not.  So is it MORE fair to stick these random losses on random people who have to bear their full brunt? OrShould  Coke, who is after all MAKING money selling the bottles, pay?  

    IF random explosions of Coke bottles are a fact of life; then so are injuries resulting from them. Which means that they are, or should be, part of the cost of doing business for Coke  just like advertising or production.  Moreover, while that $50,000 would bankrupt the average person; Coke can recoup it and any other losses like it by adding a penny or two to the cost of every bottle sold.

    And then after explaining that, when you ask the question again:  "should she win?" you get a very different answer.

    And that is the naked economic truth of the thing.  Business hate tort suits not because they are unfair; but because if they can con the legislatures into capping and/or eliminating them; they can transfer part of their costs of doing business onto other people and thus enjoy greater profits.

    Knowledge is power Power Corrupts Study Hard Be Evil

    by Magorn on Wed Jan 10, 2007 at 10:00:19 AM PST

  •  One On One (1+ / 0-)
    Recommended by:
    Magorn

    In a courtroom before a jury, it's plaintiff against defendant.

    It's not difficult, if you have the money and the inclination, to buy off a legislature or a governor, or (if you're big time enough) Congress or the White House.  

    In jurisdictions where judges are elected, it's not hard to buy their favor either. It's also quite possible to capture state or federal regulators. In many cases, all you need to do is institute some of the revolving door, or just keep greasing the politicians until they force the regulators to do your bidding or appoint judges who see things your way.

    Buying a jury is quite a bit tougher than any of that, which scares the crap out of the fat cats used to getting their way with every other instrumentality of government.

    Check out Answer Guy Online. Thoughts from a bottomless pool of useless information.

    by Answer Guy on Wed Jan 10, 2007 at 11:15:36 AM PST

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