September 2010 Archives

Congress adjourned last night, and again the Senate left the families of the Deepwater Horizon disaster without the ability to fully exercise their Constitutional rights. It has been more than 90 days since the House voted unanimously to repeal outdated federal pro-shipping laws and enable the survivors to have their day in court, but there hasn't been even one debate or recorded vote in the Senate on any bill.

To repeat what I wrote on September 18, "If the 11 workers killed on the rig had instead been working on land, or even hovering on a helicopter near the rig, their survivors would not have their 7th Amendment rights so unfairly limited by decades-old laws enacted before anyone dreamed of a floating oil rig." The House-passed "SPILL Act" would repeal those decades-old laws and enable the Deepwater Horizon victims to recover damages in the same way as if the explosion had occurred on land. The SPILL Act is perfectly consistent with principles of Constitutional conservatism in that it (1) upholds the 7th Amendment right to bring civil cases before a jury; (2) doesn't spend any taxpayer dollars; and (3) doesn't impose any federal enforcement mechanism, with victims' rights enforced only in "the legal marketplace of ideas" before a jury of their peers. What's wrong with that?

Meanwhile, the Gulf Claims Facility Fund, which is actually driven by BP (after all, they're paying Kenneth Feinberg's salary), is failing to meet any expectations for fair and rapid payment of valid claims. The Justice Department has called the pace of the process "unacceptable," and Feinberg has been called to Washington to try to explain the snail's pace of payments and the criteria he is using to minimize BP's exposure. Gulf-based businessed desperate to receive some compensation for lost business are hanging on by the skin of their teeth, with many giving up altogether. And Feinberg is demanding that victims forego all 7th Amendment rights if they accept final payments from the GCFF. Congress cannot depend on the GCFF to act as the impartial and final arbiter of compensation for the Deepwater Horizon disaster.

"Holocaust survivors, just like anyone else, should have the right to have their day in court to recover under their policies... It is not in the interests of the United States to deny survivors their legal rights."

Rep. Ileana Ros-Lehtinen, testifying in a prepared statement before the House Judiciary Committee today at a hearing on H.R. 4596, the "Holocaust Insurance Accountability Act of 2010." A global settlement of Holocaust-era insurance claims ended without payment to numerous victims, and the insurance industry is asserting federal preemption over any state court claims as a result of the settlement. The bill would block that preemption and enable Holocaust survivors to go to court and seek payment from those insurance policies purchased before or during World War II.

Rep. Ros-Lehtinen's bill has 37 co-sponsors as of today, including a number of Congressmen who inconsistently support federal preemption of state statutory and common law in other areas. For instance, many of them are on record supporting federal preemption in regulation of implantable medical devices, with corporate immunity against any state court suit involving such life-saving medical devices as artifical limbs and heart pacemakers, as well as brain shunts, chest catheters, and insulin pumps. It's commendable that these Congressmen are so supportive of the 7th Amendment rights of Holocaust survivors. But they should also stand with heart patients who need a pacemaker, or children who need a brain shunt, and the Congressmen should recognize the inconsistency of supporting federal preemption in one instance one day, and opposing it the next day. As Rep. Ros-Lehtinen noted in her statement, federal preemption with immunity strips Americans of their 7th Amendment rights. It also empowers federal judges and regulators in Washington, instead of local juries, and should be opposed in all instances.

So the new GOP agenda for the 2010 elections is about to be released, and press reports indicate that it might include some call for "tort reform" or "medmal reform." Whenever I read those phrases, I substitute the words "Fairness Doctrine" or "gun purchase restrictions" and imagine the outrage that would ensue among Constitutional conservatives and average Americans. The prevalence of terms like "tort reform," "medmal reform," or "stop junk lawsuits" is proof that the users of such terms, and the people who follow them, haven't taken a long hard look at the nature of Constitutional rights and the mechanisms needed to exercise them.

Here's how I think of it: Each Constitutional right has an "agent," an entity or entities that bring that right alive, make it a reality, and implement it among the people. The agents for the First Amendment freedom of the press are the media, in all its forms. The agents for the First Amendment freedom of religion are churches and associated religious entities. The agents for the Second Amendment right to bear arms are the sellers of firearms.

Whether you like it or not, the agents for the 7th Amendment right to jury trials for civil suits are the attorneys licensed in each state who file cases for plaintiffs - they're the trial lawyers (unless, of course, the plaintiff acts as his/her own attorney). That's the way it is, has been, and will be. Any legislative agenda that includes a catchy phrase like "tort reform" is inherently targeting our 7th Amendment rights for restriction or, in some specific cases such as federal preemption of state law, outright extinction.

No Constitutionally conservative election agenda should paint a bullseye on any of our Constitutional rights for any reason. We wouldn't tolerate an agenda that targets MSNBC or the New York Times just because they're biased outlets, and so on for all the other agents of the First and Second Amendments. Why target the agents of the 7th Amendment when the Founders believed so strongly in civil jury trials? I hope and plead that Tea Partiers and Constitutional conservatives will resist joining any call for "tort reform" and see it for what it is, an attempt to cut a huge hole out of the Bill of Rights.

On September 8, I reported on the latest effort in Congress to enable victims of the Deepwater Horizon disaster to hold BP and its partners accountable in court. Key Democratic and Republican Senators are attempting to compromise with shipping interests and their Senate champions, who oppose any change in maritime liability law, and end the unfair discrimination in federal law faced by the BP rig victims' survivors. If the 11 workers killed on the rig had instead been working on land, or even hovering on a helicopter near the rig, their survivors would not have their 7th Amendment rights so unfairly limited by decades-old laws enacted before anyone dreamed of a floating oil rig. But old habits die hard, and shipping interests continue to enjoy economic and political advantages that apparently override, in the halls of the Senate, Constitutional consistency and American principles of equal legal treatment for all. Sen. Rockefeller cut more provisions from his bill. S. 3755, in an effort to mollify the opposition, and then tried to move the bill swiftly through the Senate, but numerous Senators have objected. The week ended with no action. It has now been 79 days since the House passed the SPILL Act by voice vote of both parties, with no response by the Senate.

To date, there hasn't been a single minute of open debate in the Senate on any bill. All of the maneuvering and wrangling is being done behind closed doors, in an effort to quickly pass something that helps the victims before the Senate recesses for the election. But back-room discussions also empower the shipping interests and enable their Senate champions to avoid public scrutiny. If no deal can be made very soon, the Senate should face its Constitutional responsibility to publicly debate, write, and vote on a bill. The Senate should not adjourn without restoring the 7th Amendment rights of Americans injured or killed on sea-based work platforms. They should be given a chance to prove their case against BP in court. It's the Constitutional way.

"An awakened citizenry, participating in juries around the country, could bring about a nonviolent revolution of magnificent proportions, reversing the sad trends of the twentieth century. The jury today is a weak institution, as are all the other institutions designed to guarantee individual liberty. The right effort could revitalize the jury and restore it to its rightful place in curtailing the endless growth of an all-powerful state."

Rep. Ron Paul, writing in his book Freedom Under Siege (1988) (quoted in M.A. Nystrom's BullNotBull website)

And there's more from Rep. Paul, one of the premier Constitutional conservatives in the country, in that book:

"According to Lysander Spooner, a mid-nineteenth-century writer, there are five separate tribunals protecting us from abusive government laws: The House of Representatives, the Senate, the Executive, the Courts, and the Common-Law Jury. He maintains that all are important but that the ultimate protection of our liberty must be placed in the hands of our peers...

Spooner argues eloquently for the right of the jury to pass final judgment on all laws, the moral intent of the law, the constitutionality of the law, the facts of the case, and the moral intent of the accused. Spooner's argument for allowing such responsibility to rest with the accused peers is that delegating responsibility only to the representatives in Washington was fraught with danger. He was convinced that all government officials were untrustworthy and susceptible to bribery and that removal of our representatives in the next election was not sufficient to protect the people from unwise and meddling legislation."

Obviously, Rep. Paul is a "7th Amendment advocate." His fellow Constitutional conservatives should heed his advice and follow his example.

On Sunday, September 12, thousands of Americans loyal to the U.S. Constitution and Bill of Rights will be in Washington for the second Taxpayer March. I welcome the many groups who pledge to adhere to the guiding principles set forth by the Founding Fathers, and I hope their vision of the future includes the right ensconced in the 7th Amendment to enable us to file civil suits and have our claims heard by a jury of our peers. While I'm sure that most of the participants will recognize the importance of upholding each amendment in the Bill of Rights, at least one of the sponsoring groups appear to have already targeted our Constitutional rights for oblivion. Whenever you read a reference to "greedy trial lawyers," you should realize that what they really want to do is to limit the rights and powers of the jury, which is the actual decision-making authority in a civil suit. Too often, "tort reform" really means artificially capping the amount an injured person can recover, or protecting corporate wrongdoers through federal preemption and immunity, or creation of a forced and biased arbitration process for consumer complaints.

I've never seen a juror walk into a jury box with two healthy arms and exit with one arm twisted behind his or her back through the words of a lawyer. The Founders trusted juries, and real Tea Partiers can too. They should recognize calls to "end lawsuit abuse" are code for "scrap the jury system."

Would Americans trust any federal bureaucracy with regulating our use of firearms? Of course not! That's what the past 40 years of litigation to defend our Second Amendment rights has been all about - asserting our individual right to own firearms and defend ourselves, without interference or infringement from an all-powerful Uncle Sammy. And it's not as if there isn't a cost associated with Second Amendment rights - let's face it, the cost is the periodic loss of innocent life in gun accidents. But Constitutional conservatives accept that cost because we believe, in accordance with the writings of the Founding Fathers and centuries of common law, that the right to bear arms is an "unalienable" right, and a cost-benefit analysis simply isn't applicable to a God-given natural right.

Similarly, Americans are not willing to trust the FCC with our First Amendment rights, so we've fought a "Fairness Doctrine" (a Goebbels-like term if there ever was one) which would obviously regulate conservative talk radio into the ground. The cost of the First Amendment is periodic eruptions from a biased and inaccurate media elite (say, MSNBC). A friend of mine, an attorney who periodically represents plaintiffs against the FCC, puts it this way:

"My clients don't trust government agencies to protect them. They want to use the law to protect themselves. Do you think cell phone companies often deceive or cheat their customers? (They do, in fact.) Then the last place you'd put your trust is the FCC. What a co-opted agency. My clients want to be able to go to court, and have a jury with a bunch of other individuals (some or many of whom won't be rich overdogs) decide their claims."

That's the type of language that the Founding Fathers and today's Tea Partiers and Constitutional conservatives would understand and appreciate, even if they knew that my friend is a liberal Democrat.

So if we're not willing to trust the FCC with the First Amendment, or any federal bureaucracy with the Second Amendment, why are so many conservatives compromising the 7th Amendment by trusting the FDA with the exclusive regulation of implantable medical devices such as artificial limbs and pacemakers, or the Treasury Department with the exclusive regulation of financial services?! That is what has happened over the past ten years in Washington. Conservatives who would filibuster in Congress until hell freezes over for the Second Amendment have turned right around and accepted a 2008 Supreme Court ruling that threw out thousands of lawsuits filed in state courts against defective medical devices. The ruling effectively placed ALL regulation of these devices solely in the hands of the FDA, with no appeal to a jury of our peers if the artifical hip blows up inside us or the pacemaker send dozens of shocks through the victim's body (and those have happened very often). Once the device is approved, there is virtually total immunity for the manufacturer, with so little possibility of recovery that law firms have dropped the practice altogether. Similarly, many of those same Second Amendment champions tried to engineer a federal takeover of all regulation of financial services, which could have ended Americans' search for justice in court against crooked financial advisors. Fortunately, those plans didn't come to fruition in the financial services "reform" bill. I don't understand why any conservative who voiced disapproval of 2,000 new pages of legislation governing financial services would suddenly trust the few pages which would preempt state regulation of and consumer lawsuits against the financial services industry..

Tea Partiers and Constitutional conservatives across the country should vigorously demand that their elected officials maintain real consistency in defending each and every one of our Constitutional rights. Don't let them get away with selective recognition and enforcement of some, but not all, of the Bill of Rights.

P.S. Interestingly, a lawyer who has periodically worked with Joe Miller, the trial lawyer who is the Republican Senate candidate in Alaska, recently described their work together. "David and Goliath stuff. We represented little guys against big guys." That's great stuff - GO JOE GO!!

Let me get this straight: Millions of Muslims around the world either support or don't care about the murder of innocent Christians wherever Shariah is the prevailing law (see Pakistan and Indonesia)... and millions of Muslims either support or don't care that Shariah law relegates women to an inferior status... and millions of Muslims either support or don't care that Shariah law denies the populace the centuries-old, basic human right to have your civil wrongs addressed by a jury of your peers, instead putting those decisions in the hands of a local Imam... but if an intolerant preacher at a nothingburger-sized church in an rural corner of America decides to burn one Koran in public, THAT is cause for WAR??!! As that famous felonious ex-Congressman, James Trafficant, used to exclaim, "Beam me up!"

BP has released its internal investigation report on the Deepwater Horizon disaster. Predictably, the report spreads the responsibility for various failures among the companies in the rig venture, without citing any particular reason which might leave BP, or any other company involved, open to civil liability. Note this paragraph in the Executive Summary:

"The team did not identify any single action or inaction that caused this accident. Rather, a complex and interlinked series of mechanical failures, human judgments, engineering design, operational implementation and team interfaces came together to allow the initiation and escalation of the accident. Multiple companies, work teams and circumstances were involved over time."

In other words, it just happened - "stuff happens." But this is why the British peasants at Runnymede forced King John to sign the Magna Carta in 1215 and empower their right to bring their civil wrongs before a jury of their peers. This is why our Founding Fathers created the American justice system in Article III of the Constitution, and why they empowered Americans with the 7th Amendment, based on the Magna Carta and centuries of British experience, to bring their civil wrongs before a jury of their peers. Juries are the triers of facts and can assign the legal liability for the accident and the proper compensation for the injured. The Founding Fathers trusted juries, and almost 800 years of experience shows that it's still the best system for the exercise of civil justice.

Unfortunately, because of special federal laws enacted decades ago to help shipping interests (the Death on the High Seas Act, Jones Act and the Limitation of Liability Act), victims of the Deepwater Horizon disaster have seen their 7th Amendment rights unfairly abridged. The U.S. House passed a great bill by voice vote of Republicans and Democrats on July 1 (basically a unanimous vote), only to see the Senate version bogged down by opposition from commercial fishing interests and irrelevant battling over energy policy.

Sen. Rockefeller has introduced S. 3755, a new version of the House-passed bill, in which he tries to compromise with the commercial fishing interests to simply enable the Deepwater Horizon victims to have their day in court, unhindered by outdated and unfair limits. It would end the unfair discrimination against sea-based oil rig accident victims; land-based victims suffer from no such federally imposed limit on their 7th Amendment rights. This version deserves debate and a final vote by the Senate, after which it could be quickly adopted by the House to assist the families.