HAMMER: Here’s How States Can Help Conservatives Secure Even More Legal Victories

Josh Hammer 

America is currently in the midst of a broader political realignment. The political Left, which once upon a time purported to stand for the forgotten “little guy” against the titans of Big Business, has in recent years decided that Big Business is actually an ally of convenience in its long Gramsci-an “march” through the institutions. Chris Rufo has perhaps demonstrated this trend better than anyone else.

And the political Right, whose once-instinctive neoliberal proclivities made it a convenient ally for Big Business, is currently rethinking its approach to political economy in general, as well as its specific relationship to culturally leftist multinational corporations. The most tangible recent expression of this rethinking has been Florida Republican Gov. Ron DeSantis’ crippling punishment of The Walt Disney Company for its coming out on behalf of sexually grooming innocent children in the Sunshine State.

The times, as Bob Dylan once sang, are a-changin’.

But as conservatives (prudentially) begin to pursue a more litigious agenda to rein in the corporate oligarchs who hate us and seek to subjugate uslike Amazon, the onus will shift a bit to an area of under-deserved attention: judicial economy.

Specifically, if conservatives want to better ensure our meritorious legal challenges to woke tyranny stand out and are not dismissed out-of-hand, it becomes important to better screen for, and weed out, frivolous lawsuits — and frivolous tort-related lawsuits, specifically. Each frivolous tort suit grinds the gears of the already-overly taxed judicial system, and detracts scarce time, attention and resources away from genuine concerns.

Consider, for example, the proliferation of noxious “public nuisance” tort litigation, which I have previously detailed elsewhere. Thankfully, the Oklahoma Supreme Court pulled the rug out from public nuisance litigation advocates in an important ruling last fall. Or consider the well-known proliferation of medical malpractice litigation in the United States; there are estimated to be roughly 20,000 malpractice lawsuits filed in the country each year, the majority of which are frivolous.

The cumulative effect of the metastasis of these types of frivolous litigation is to gum up the works and make it more difficult for targeted, prudential litigation against worthy targets. Some of that litigation would entail the more realistic, prudential use of antitrust against the overly powerful, and overly woke, Silicon Valley oligarchs who control our 21st-century public square.

And some of that strategic litigation would entail class-action consumer fraud litigation if, and when, Big Tech companies violate their terms of service agreements.

The net effect of such litigation should be as a deterrent effect against woke corporate actors who want to use corporate power to make half the population bend the knee. We need to fight back. But our task is only made more difficult by the proliferation of genuinely frivolous lawsuits.

Reform is thus necessary. But that takes time. In the interim, some companies are trying their best to ward off blatantly spurious lawsuits from self-interested lawyers simply hoping to gum up the works and bring home some extra bacon. One creative legal strategy, from the state where I used to practice law, is the so-called Texas Two-Step.

Under the Texas Business Organizations Code, a company can split in two, wherein one entity will receive all liabilities with limited assets for tort victims and the other, larger entity can insulate its assets from the liabilities. Since the new, smaller entity will not have enough of its own assets to cover all liabilities, it can file for bankruptcy, shifting the case from civil to bankruptcy court. Such a tactic thus helps clear the civil docket, amounting to a win not merely for the frivolously sued defendant, but also for judicial economy more broadly.

Tort lawyers, who still usually tend to be political progressives, tend to hate these sort of strategies. And if progressives are skeptical of such defensive maneuvers as the Texas Two-Step, they should work with conservatives to effectuate real, longer-lasting reforms.

But if stopgap measures are what it takes to free up bandwidth on the docket to focus on more pressing legal matters, such as antitrust suits and even consumer fraud suits against Big Tech, then so be it. More states should consider dancing to the beat of the Texas Two-Step.

Josh Hammer is Newsweek opinion editor, host of “The Josh Hammer Show,” a syndicated columnist, and a research fellow with the Edmund Burke Foundation. Twitter: @josh_hammer.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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