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On Friday Wendy Davis released an ad attacking her opponent, Greg Abbott, which elicited an immediate and nearly universal backlash. Sarah Rumpf, over at Breitbart Texas, has a roundup of criticism from across the political spectrum. The entire political spectrum, including left-leaning national outlets such as Mother Jones and MSNBC.

Among the critics quoted is me. My initial reaction was that the ad was “mean-spirited and misleading”. I think most people agree with the first point, at least. The ad is, at best, weird, crass, and glib about the 1984 accident that left Abbott partially paralyzed at age 27; even Davis’s defenders were put off by the tone and framing. Some of her supporters have, however, defended the point that the Davis campaign was presumably trying to make: that after successfully suing for damages himself, Abbott has “spent his career working against other victims.” I still think it’s misleading, for reasons explained after the jump. 

Given his longstanding public support for tort reform, Abbott has been charged with hypocrisy before. Last year Jay Root, at the Texas Tribune, had a nice rundown of the questions that Abbott might face about his settlement, given his subsequent professional record. And my colleague Brian Sweany raised the issue to the attorney-general himself in interviews last year. Abbott, as Brian put it, “flatly denies that there is any conflict between his own case and his efforts to limit frivolous lawsuits.” He also told Brian that a person in a similar situation today would be able to expect a similar settlement. Bill Dorsaneo, a law professor at SMU and tort reform expert, agreed with Abbott’s characterization: “Except for the fact that insurance companies did not expect to get favorable treatment from the appellate courts until sometime in the nineties and were more inclined to settle weak liability cases then than now, there is not much about Abbott’s settlement that seems unusual under today’s legal standards.”  

Still, Dorsaneo’s implication is that these days companies do “expect to get favorable treatment” in liability cases, as a result of tort reform policies advocated by Republicans, including Abbott. Whether that’s a good development is debatable, and it’s fair game to criticize Abbott for supporting those policies. Insofar as Davis’s ad gestures in that direction I can see why her supporters are defending its message, if not its execution. From my perspective, though, the ad doesn’t quite connect the dots. If the idea was to criticize Abbott for supporting tort reform policies that disproportionately marginalize certain subsets of Texans, that provide undue protections to corporate interests, or that have failed to yield the systemic benefits that their advocates forecasted in calling for the reforms, the summary version would be “since then, Abbott has spent his career working against other Texans.”  

Instead the line is that Abbott has spent his career “working against other victims,” based on three cases in which, as a judge or as attorney general, he had a skeptical response to a plaintiff. As others have noted, as a judge or an attorney general he has a role in an adversarial legal system, and would have been tasked with interpreting or defending the law, regardless of his own views. Beyond that, it’s interesting that one of the “victims” cited is not actually a “victim” (except in the sense that, to paraphrase Thomas Hardy, in our brief transit through this sorry world many people deserve more than they are given). In 2004, Abbott’s office argued that a woman with a lower-leg amputation couldn’t sue TDCJ over employment discrimination on the basis of disability, because she had a prosthetic and was, therefore, not disabled. That is a counterintuitive argument, even though, as TDCJ had pointed out, the prosthetic had corrected the worker’s mobility well enough that she had been able to do her job without requiring or requesting any accommodation.

In any case, Davis’s ad doesn’t mention what happened next: the conservative Texas Supreme Court disagreed with Abbott, and ruled that the worker had a right to a trial. The trial took place, and she lost. If you’re trying to make the case that Abbott and the Republicans have gone too far with tort reform, it would be an odd example to pick. The impression I got was that Davis, instead, and once again, wants to suggest that Abbott is an agent for predatory forces, if not a predator himself; the pitch is less about Abbott working for insiders than about Abbott working for victimizers. That’s misleading–especially when it’s Davis, rather than her opponent, running the attack ad.  

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