Since we took our first snapshot of new causes of action in January, we expressed concern that what we were seeing constituted an ominous trend. Now that March 10 has come and gone, and lawmakers have filed north of 8,000 bills and resolutions. We would love to say that the trend we foresaw in January did not pan out, but, unfortunately, our most pessimistic estimates weren’t pessimistic enough. Here are the raw numbers, which at this point are provisional. We will follow up with a more complete analysis as soon as we can.
- We count at least 197 new causes of action, though the large number of new civil and administrative enforcement measures could take this number significantly higher. As we observed in January, creating new ways to sue businesses, health care providers, governmental entities, and public officials (including judges!!!) is a bipartisan exercise.
- At least 150 bills create or expand civil or administrative penalties, though it is highly unlikely we caught them all.
- A whopping 76 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.
- A handful of bills have been filed that create no-injury standing, but several more utilize SB 8’s approach of limiting judicial review. We have grave concerns that so many proposals breach the separation of powers between legislative and judicial functions. Not only do many of these proposals eliminate or curtail defenses to liability, they also tell the courts how to rule on legal questions and, in some of them, threaten judges with personal liability for doing so. These proposals raise grave concerns about constitutional rights to due process and, more generally, the future of the rule of law.
