An unusually heavy opening to the bill filing period appears to bear out what we had feared: the legislative infatuation with turning over to the courts enforcement of various social policies has only intensified. While we will provide more detail on the proposals in the days and weeks to come, this snapshot of the first 1,000 or so bills and resolutions reveals an ominous trend. In general terms, here’s what we have so far:
- We count at least 38 new causes of action, though the large number of new civil and administrative enforcement measures could take this number even higher It’s important to note that these bills are coming from the entire political spectrum. Expanding liability for businesses is a bipartisan activity.
- At least 13 bills create or expand civil penalties.
- Eleven bills create an explicit basis for the recovery of attorney’s fees. However, numerous bills that enhance administrative or regulatory authority likewise have embedded attorney’s fees provision that will expand that number.
- The trend of expanding the attorney general’s enforcement authority continues as well. At least 11 bills filed so far do that, with many more likely on the way.
- At least 14 bills expand administrative remedies, primarily in the employer-employee context.
- So far two bills have been filed that create no-injury standing. One is a straight-up duplicate of SB 8 against businesses for using “value-based” criteria. The other allows any person to sue the governor or a local entity over an emergency order. The latter appears to acquire the plaintiff to allege “harm,” but it does appear to require the plaintiff to prove
In addition to these, a number of proposed bills increase regulatory burdens, impose new restrictions on occupational licenses (particularly in health care), and call for nullification of federal law. With a start like this, what will we find in the next 6 or 7,000 bills to come between now and March 10?