March 2011 Archives

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people's liberty. (Emphasis mine.)

James Madison, Speech to Congress, June 8, 1789

And so it was that James Madison, architect of the Constitution, rose on the floor in the first U.S. Congress to propose what he also called, "the great rights," including trial by jury for criminal and civil cases, to protect individual liberty from the power of the new national government and the states. He proposed up to 20 amendments to the Constitution for consideration, of which ten ultimately were approved by the states. He proposed the right to a jury trial for civil and criminal cases together in the same amendment, and stated his proposal on civil jury trials using text already adopted in state constitutions:

In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. More on that sentence below.

This speech is so loaded, so full of the doctrines underlying limited government, that I could have chosen other passages to emphasize. For instance, it's in this speech that Madison said something I quote often in meetings and panels, Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. (Emphasis mine.)

Other pertinent quotes include the following:

(Referring to Great Britain) In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

OR

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper.

So why, after winning the long fight to ratify a new Constitution, did Madison commit so quickly to amending it? He states the reason up front and reiterates it later:

It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be engrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished... It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

Madison knew, after correspondence with Thomas Jefferson and others, that the arguments made by George Mason and other Founding Fathers for a declaration of rights had taken hold in the hearts and minds of Americans, to such an extent that the only through amending the Constitution could Congress ensure unity.

It's clear that James Madison intended these amendments to limit all powers delegated to the national government as enumerated in every clause of the Constitution, including the power delegated through the Commerce Clause. He said so quite clearly, as I've already quoted him: "an impenetrable bulwark against every assumption of power in the legislative or executive." And he proposed to protect the "great rights" after those clauses had been drafted and ratified, so the rights enumerated in the amendments were obviously meant as limits on the exercise of those clauses. Finally, with respect to the right to civil jury trials, he used the term "inviolate," meaning pure or undisturbed, untouched, and unbroken. James Madison never described the Commerce Clause as "inviolate;" he must have meant that clause to be subordinate to the right to civil jury trials.

As I wrote in February, a Constitution in which individual liberty is subordinate to Congress' power to regulate "commerce," which is so broadly defined today, is a roadmap to tyranny. Sen. Rand Paul, Justice Clarence Thomas, and Rep. Ted Poe have already sounded the warning siren on this point. Will Congress listen?

Two Wall Street Journal articles today highlight the real reason for medical errors, which kill up to 100,000 hospital patients annually, and for the shortages in doctors across the country. And in neither case do lawsuits for medical malpractice, or premium levels for medical malpractice insurance, play any role.

The U.S. government reports that medical errors are among the leading cause of death in America today, and are the real source of so many medical malpractice lawsuits. The Wall Street Journal article points out that the occurrence is entirely the fault of the practitioners:

According to a two-pronged survey of operating-room and critical-care nurses conducted by their professional associations and VitalSmarts, a global training and consulting firm, 85% of 2,383 nurses surveyed said they'd been in a situation where measures put in place to reduce errors - including checklists or hand-off protocols -- warned them of a problem that would have otherwise harmed a patient. That's the good news. The bad is that 58% of the nurses said they'd been in situations where it was either unsafe to speak up or they were unable to get others to listen.

The report focuses on what causes this type of communication breakdown, including three concerns that are rarely discussed by health-care teams: dangerous shortcuts, incompetence and disrespect. Among respondents to a separate survey of 4,235 nurses, 84% reported working with people who take potentially dangerous shortcuts, such as not washing hands for long enough, with 34% saying shortcuts had led to near misses and 26% saying they caused harm to patients. Some 19% say incompetence or lack of required skills have harmed patients and 20% say that disrespect is making them seriously consider leaving their profession.

Hmmm, nothing about medical malpractice premiums or lawsuits in there. Want to end medmal lawsuits? Try ending deadly medical errors first, instead of letting "dangerous shortcuts, incompetence, and disrespect" go unpunished.

Then there's the nationwide shortage of doctors, which pro-tort reformers like to link to medmal suits and medmal insurance premiums. But many states already have limits on medmal lawsuits. As I posted last week, there's been a doctor shortage in Texas even after the state enacted a very tough limit on medmal suits.

So what does the WSJ article today say is the cause of a worsening doctor shortage? OBAMACARE!! What a big surprise!! Promise everyone free health insurance and, POOF, we don't have enough doctors to treat all these new patients. From that article:

The new federal health-care law has raised the stakes for hospitals and schools already scrambling to train more doctors. Experts warn there won't be enough doctors to treat the millions of people newly insured under the law. At current graduation and training rates, the nation could face a shortage of as many as 150,000 doctors in the next 15 years, according to the Association of American Medical Colleges. That shortfall is predicted despite a push by teaching hospitals and medical schools to boost the number of U.S. doctors, which now totals about 954,000.

The greatest demand will be for primary-care physicians. These general practitioners, internists, family physicians and pediatricians will have a larger role under the new law, coordinating care for each patient. The U.S. has 352,908 primary-care doctors now, and the college association estimates that 45,000 more will be needed by 2020. But the number of medical-school students entering family medicine fell more than a quarter between 2002 and 2007.

So if you want to cure the doctor shortage, let's repeal ObamaCare! Longtime readers of this site know that I consider ObamaCare to be every bit as violative of the Commerce Clause as current medmal "reform proposals." But now the article gives us another reason to oppose it, as if we needed another reason.

The What's Up radio program, hosted by Christian broadcaster Terry Lowry, is heard on 12 stations in 10 states, thanks in part to co-sponsorship by the American Association for Justice, the nation's leading group of plaintiffs' attorneys and one of my clients. Terry Lowry is a longtime champion for conservative, pro-life and pro-family issues, and he completely understands the God-given, unalienable right to a jury trial for civil suits, as protected by the 7th Amendment to the Constitution. He's devoting a portion of his broadcasts each week to current topics involving the 7th Amendment, through interviews with legal experts, plaintiffs' attorneys, and 7th Amendment advocates, including me. Here are pertinent segments from his programs in the past week, with links to listen to the audio files for the interviews:

What Caused the BP Oil Spill and When Will Those Damaged Be Made Whole - March 22:

What caused the explosion and ultimate sinking of the Deepwater horizon oil rig in the Gulf of Mexico last April? Who was damaged, how does one calculate the amount of compensation owed, and who should be held responsible. Mike Holley, with the Lanier Law Firm, describes common tactics used by insurance companies and 'their adjusters': first deny; then delay any payment; and if all else fails, offer a low settlement to someone so desperate they just might accept an "under payment" of what is rightfully owed. And whether citizens and businesses all along the Gulf Coast experiencing this in regards to the BP oil spill. Listen to Segment 1 and then to Segment 2.

What Is More Important - Gun Ownership Or Free Speech? What About The Right to a Trial By Jury? - March 22:

What about the 6th and 7th Amendments: the right to a trial by Jury? James Madison was our Fourth President and America recently celebrated his 260th birthday. As the principal author of the Constitution and the Bill of Rights, how important did he consider the 1st Amendment, the 2nd Amendment and the 10th Amendment which conservatives and tea party activists cling to so stridently? What about the 3rd through 9th Amendments, are they less important? I discussed these issues with Terry in my segment.

British Petroleum Oil Spill: The Catastrophe of 2010 - March 18:

Brian Barr, a partner with the Pensacola Levin Law Firm, is one of four attorneys chosen by the federal judge overseeing thousands of claims against British Petroleum, Transocean and Halliburton. He discusses who was affected by the largest oil spill in history and how can a business begin to estimate their damages. Always remember: the adjuster works for the insurance company. Often, they will simply deny a claim causing the person or business harmed to simply walk away. If this does not work, adjusters and the insurance company will begin the tactic of delay, delay, and delay some more until the person or business harmed becomes so desperate that they will accept an "underpayment". And that's the third tactic insurance companies use to protect their bottom line: offer a 'low-ball' settlement in hopes it will be accepted out of desperation. Listen to Segment 1, then to Segment 2, and then to Segment 3.

Should the Qur'an & Sharia law been banned in America? - March 17:

Dr. Robert Greer, researcher and expert on Islam, asks and answers questions about the Qur'an: Does the Qur'an incite, instruct, and/or encourage its readers to kill non-believers and kill converts who leave the teachings of the Qur'an? Is the code of living under Sharia law compatible with the U.S. Constitution? How are women treated under Sharia law? How are homosexuals treated under Sharia law? How are blacks treated under Sharia law? Dr. Greer answers these and many other questions in this segment.

America is on a collision course with Islamic Sharia Law - March 16:

Neil Mammen of the No Blind Faith website was born in Africa and grew up in the Sudan and Yemen - both currently considered terrorist countries. He has lived under Islam, Hinduism, Fascism, Imperialism, and Socialism and has visited communist countries. When he came to America, he asked himself, "What makes America so Great?" Listen for his answers to this and for the focus of this interview: "What would Jesus do with Islamic Sharia Law?"

Big Business and the Chamber of Commerce demand that Congress stop frivolous lawsuits. But are judges calling for Congressional Action? - March 16:

It's hypocritical for any House Republican to complain about "an overreaching judiciary" that thwarts the will of the people and overturns their votes and their values, and then turn around and overturn standards for state and local judicial decisions through federal pre-emption and "tort reform." You can't have your cake and eat it, too! House Republicans pledged "to honor the Constitution as constructed by its framers and honor the original intent of those precepts". Now, some House Republicans are focused on dishonoring the Founders and the independence of the Judiciary. I discussed this with Terry in my interview.

There's no other syndicated radio program in America on which these issues and our Constitutional principles are discussed regularly. I hope 7th Amendment advocates and fans will tell their friends and support this program.

The primary emphasis of this website is to promote the unalienable right to a jury trial for civil suits, which our Founding Fathers protected through the 7th Amendment to the Constitution after centuries of recognition in British law and Judeo-Christian writings. I realize that the principles get lost in the frequent pounding by the business community over the cost of civil litigation to business. So here are a few well-worn myths about civil suits and medical malpractice claims that are often overlooked by the mainstream media:

1. Myth: We Need Federal Tort Reform Because Our Court System Is Overburdened With Tort Claims Against Businesses

Fact: Tort cases are a very small percentage of the civil docket. According to the National Law Journal, tort filings declined by 25 percent between 1999 and 2008, filings over contracts rose by 63 percent. According to a 2008 analysis by the National Center for State Courts, tort cases represent only 4.4 percent of the civil caseload.

2. Myth: Additionally, Our Courts Are Flooded With An Increase in "Frivolous Lawsuits"

Fact: There's no sure way to determine just what constitutes a "frivolous lawsuit." But one metric would be to review the trend in the imposition of sanctions against plaintiffs' lawyers, an action that federal judges can take under Rule 11 of the Federal Rules of Civil Procedure. A judge can invoke Rule 11 and fine the lawyer for filing a lawsuit that is utterly without merit, and state courts also utilize Rule 11 or some version similar to it. But there has been no evidence of an increase in Rule 11 sanctions against attorneys. According to a survey of judges by the Federal Judicial Center., 80% indicated that some version of Rule 11 is needed but that it is right the way it is. The American Bar Association wrote to Congress this week that, "We do, however, question assertions there has been a significant increase in the filing of non-meritorious litigation in the 18 years since Rule 11 was revised to permit the discretionary imposition of sanctions. While anecdotal stories can be riveting and take on a life of their own, they are an inadequate substitute for concrete empirical data of lawsuit abuse."

3. Myth: We Need Federal Limits on Medical Malpractice Lawsuits Becuse The Number of Lawsuits Is Skyrocketing

Fact: According to Congressional testimony before the House Judiciary Committee, the number of medical malpractice claims didn't spike during any part of the last decade. According to the National Center for State Courts, the number of medical malpractice claims dropped 15% between 1999 and 2008. And the National Association of Insurance Commissioners reported in 2009 that medical negligence payouts dropped 45% since 2000. According to the insurance industry's own data, inflation-adjusted per doctor claims have been dropping since 2002, from almost $8,700 that year to $4,900 in 2008.

4. Myth: Medical Malpractice Reform in Texas Has Improved Health Care Availability and Lowered Costs

Fact: In 2003, the Texas state legislature imposed a series of sharp limits in medical malpractice lawsuits and claims, supposedly to prevent a doctor shortage in Texas. Yet doctors' shortages still loom in Texas today. Texas ranks 42nd among the 50 states and District of Columbia, according to the Texas Medical Association. In December 2009, McClatchy News Service story reported, "The number of new doctors in family practice, the area most in demand, has increased by only about 200, about 16 percent, and more than 130 counties still did not have an obstetrician or gynecologist."

A June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, called The Cost Conundrum; What a Texas town can teach us about health care, explored why the town of McAllen, Texas, "was the country's most expensive place for health care." The following exchange took place with a group of doctors and Dr. Gawande (emphasis mine):

"'It's malpractice,' a family physician who had practiced here for thirty-three years said. 'McAllen is legal hell,' the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere. That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn't lawsuits go down? 'Practically to zero,' the cardiologist admitted. 'Come on,' the general surgeon finally said. 'We all know these arguments are bullshit. There is overutilization here, pure and simple.' Doctors, he said, were racking up charges with extra tests, services, and procedures."

These and other facts about civil suits and medical malpractice claims demonstrate the lack of evidence justifying a national takeover of the state-based civil litigation process or a federal limit on health care-related lawsuits. Besides, the Founding Fathers never allowed discussions of our unalienable rights to be grounded in the relative costs and benefits - there's nothing "unalienable" about a right if it's subject to a cost-benefit analysis. That's why conservatives such as former Republican Senator Fred Thompson and National Review Online's Ramesh Ponnuru stand against federal tort reform and limits on health care-related lawsuits.

On Wednesday, before a U.S. House committee hearing designed to discuss the economics behind oil drilling and other aspects of energy policy, the brother of an oil worker killed last summer in the BP Deepwater Horizon rig explosion reminded Congress of the human toll of that event. Chris Jones told the Members about his late brother, Gordon, and the family left behind as a result of the gross negligence by BP and its partners on the Deepwater Horizon rig. And he reminded Congress of the Senate's failure to ensure that those working in federal waters can exercise the same rights under the 7th Amendment as those oil workers on land or being transported in the air. Here is a segment of Chris' poignant testimony (emphasis mine):

"I find it interesting how hard the oil industry is working to get back into the Gulf. BP and others want to put this disaster behind them. Meanwhile, no one with BP has bothered to place a single phone call to anyone in my family. Not once. I don't expect a profuse apology for widowing by brother's wife or killing the father of my nephews. I don't expect them to accept responsibility for Gordon's death, because that would likely be asking too much. All we expected was for someone from BP to call and tell us they were sorry for our loss. Maybe they were too busy hiring public relations firms and producing commercials. Clearly, they were too busy moving forward, trying to continue drilling and making more money, while we were left to pick up the pieces.

As many of you know, despite our best efforts, we have been unable to get Congress to pass a bill that would allow these families to recover damages against those at fault by changing laws passed almost one hundred years ago. The House of Representatives commendably tried to do that when it passed the SPILL Act last year. The Senate almost passed its own version. However, a single Senator prevented its passage by unanimous consent. I would hope that BP was not responsible for convincing that Senator to block that bill. But I don't know that.

What I definitely know they were not doing over the past year was trying to comfort these families, including mine. At the very least, BP could join our efforts to change the law. A law that would allow this family to move on with their lives. At the very least, BP and others could work with Congress to improve worker safety so this never happens again."

From the outset of the Deepwater Horizon oilspill, I've covered the legal issues and the development of the legislation. Outdated maritime liability laws remain in place, with offshore oil workers still discriminated against and unable to exercise their 7th Amendment civil jury trial rights. Previous posts include the following:

It's Official: Independent Gulf Oilspill Claims Fund Just Another BP Subsidiary

Senate Action for BP Victims Still Stalled, Feinberg Delays Payments And Gulf Businesses Fail

Senate Still Unable to Agree to Fair Legal Treatment of BP Rig Victims

BP releases internal investigation report, cites no single action or inaction

U.S. House Passes Constitutionally Conservative Bill Updating Maritime Liability Laws

Today is the 260th anniversary of the birth of James Madison, fourth President of the United States, principal author of the Constitution and Bill of Rights, the latter of which merits him the title of "Father of the 7th Amendment." Today at Montpelier, his birthplace in Virginia and lifetime home, they're celebrating by unveiling an historical marker in honor of First Lady Dolley Madison, and by holding a wreath-laying ceremony at President Madison's grave. And so it is fitting and proper to remember the following:

James Madison loved civil suits. He considered the right to a jury trial for civil suits equal in importance to each and every right in the Bill of Rights, including the freedoms of speech, assembly and religion; the right to bear arms; the right to a jury trial for criminal cases; and the right for the states and the people to exercise those powers neither delegated to the United States not prohibited to the states and people. And James Madison NEVER, EVER, proposed anything close to the subversion of civil jury trial rights through the application of the Supremacy or Commerce Clauses.

Madison wrote the text of the 7th Amendment, posted above in the website banner, as well as the following categorical endorsement of the right to a jury trial for civil suits: "In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Two years ago on this anniversary, Steven Waldman, the Editor-in-Chief, President & Co-Founder of Beliefnet.com , the largest faith and spirituality website, wrote a terrific piece on the Wall Street Journal describing Madison's love of religious liberty and his strenuous efforts to protect it in the Bill of Rights. Madison knew full well, from the history of the British people, that one peaceful way to ensure the free exercise of religion would be to sue anybody who would infringe upon that right, and have that claim heard before a local jury of peers. He knew that Article 39 of the Magna Carta guaranteed that right, and he knew that the British drifted away from their rights during the years of the Star Chamber. When George Mason and other patriots objected to the ratification of the Constitution without a Bill of Rights, he wanted to ensure that all Americans would recognize and protect their unalienable rights. So after the states ratified the Constitution, he introduced 17 amendments in the first Congress, of which ten were ultimately ratified.

James Madison would oppose every pro-"tort reform" bill proposed in Congress, period. No one can convince me otherwise.

On Friday, March 11, the House Judiciary Committee will hold a hearing on H.R. 966, the "Lawsuit Abuse Reduction Act," or LARA, the next piece of the "tort reform" agenda envisioned by the U.S. Chamber and Judiciary Committee chairman, Rep. Lamar Smith of Texas. The goal behind LARA is to toughen Rule 11 of the Federal Rules of Civil Procedure, add disincentives to the filing of civil suits in federal courts, and supposedly prevent "frivolous lawsuits" through judicial sanctions on attorneys. Although the bill's text isn't available as of the time of this post, a bill by that name was passed by the U.S. House in 2005, when Republicans were in the majority. Committee staff indicate that this version of LARA is similar in to the 2005 version in that it reimposes standards for the application of the Rule 11 standards in place from 1983 to 1993. In 1993, the Judicial Conference rejected the 1983 version, after it created an entire industry of fresh litigation over whether a particular pleading or motion was "frivolous."

As I understand it, the major elements of this year's LARA are as follows:

1. LARA makes judicial sanctions mandatory, rather than discretionary under the current Rule 11;

2. LARA makes compensation for "frivolous lawsuits" a main objective of the rule, rather than only deterrence; and

3. LARA removes the safe-harbor provision of the current rule, eliminating the ability to remedy minor infractions within 21 days without being subject to a Rule 11 sanction.

There are a host of reasons to oppose this attempt to legislate changes to Rule 11, starting with those grounded in the Constitution.

First, LARA is an unwise and unwarranted intrusion by the Legislative Branch into the independence of the Judicial Branch. The Rules Enabling Act provides for changes to the FRCP through a proposal by the Judicial Conference, followed by approval by the Supreme Court, and then review by Congress. LARA would impose Congress' will on the FRCP without consideration by the Judiciary and public comment. Moreover, it mandates, rather than allows, federal judges to impose sanctions, thus substituting Congress' judgment for the Judiciary's. The Judicial Branch clearly favors the current rule, having reinstated it in 1993, and there is no call from federal judges to change it.

Second. it's hypocritical for House Republicans to complain in their Pledge to America about "an overreaching judiciary" that "thwart(s) the will of the people and overturn(s) their votes and their values," and then turn around and overturns standards for judicial decisions through LARA. It's hypocritical of House Republicans to pledge "to honor the Constitution as constructed by its framers and honor the original intent of those precepts" and then dishonor the Founders and the independence of the Judiciary through LARA.

In other words, Congress should let judges run their courtrooms, just as Congress would want judges to stay out of the legislative business.

One extremely unwise impact of enactment of LARA would be to infringe on lawsuits filed to defend religious liberty. There's already a body of evidence to indicate that the tougher Rule 11 in effect from 1983 to 1993 had a disproportionate impact on civil rights cases. One expert testified before Congress in 2004 that although civil rights cases made up 11.4% of federal cases after filed the 1983 rule change, 22.7% of the cases in which sanctions had been imposed were civil rights cases. Ironically, he also testified that personal injury cases constituted 19.2% of cases filed but accounted for only 15.1% of Rule 11 sanctions during the same period.

On the pages of The 7th Amendment Advocate, I've reported on the critical use of the civil litigation process and 7th Amendment rights to protect religious liberty against infringement by various parties. For instance, when the University of Illinois threatened to fire a professor for his invoking Christianity in his class, a lawsuit filed by the Alliance Defense Fund forced the university to back down. But a 1992 law review article (available on Lexis) reported on a survey of plaintiffs' firms that found that "concern with Rule 11 (the 1983 Rule) led them to decline to present the claim or defense that they believed to be meritorious." So LARA could scare away nonprofits or small firms specializing in religious liberty cases from filing suits against large entities, for fear that a judge could impose costly sanctions.

Americans of all persuasions who cherish the Constitution's checks and balances, and their rights protected by the 7th Amendment, should tell their Congressman to resist enacting LARA.

I will Tweet live from the hearing on the 7thAA Twitter page.

While the international community ponders what, if anything, can be done to force Muammar Qaddafi from power in Libya, victims of Qaddafi's sponsorship of terrorism are still awaiting justice and hoping for assistance from the U.S. Congress. When the Bush Administration and Libya sought to renew normal relations, they negotiated a settlement of all outstanding civil suits filed by Americans in U.S courts, and persuaded Congress to enact the Libyan Claims Resolution Act in July 2008. The LCRA set out a process for the Americans injured by Libyan-sponsored terrorism, and for survivors of those killed in such attacks, to receive compensation for their injuries from the Libyan government. American victims, including several whose interests I have represented in Washington, were willing to foregoe the exercise of their civil justice rights under the 7th Amendment in exchange for a measure of finality and compensation for their physical and emotional injuries. Unfortunately, an Executive Order issued upon enactment of the LCRA limited its impact to only claims filed by Americans, resulting in the dismissal of all outstanding claims filed by foreign-born victims. Nevertheless, the President and Congress proclaimed that Qaddafi was finally being held resonsible for his years as a state sponsor of terrorism.

Almost three years after the President signed the LCRA, most survivors of those killed have been paid, but dozens of victims injured in terrorist attacks are still waiting for the justice promised by their government. The State Department referred the injury claims to the Foreign Claims Settlement Commission, a very small and unknown quasi-independent agency inside the Justice Department. The Commission was originally established to deal with expropriation claims, and isn't set up to deal with the rapid processing of terrorism victims' claims. The Commission has decided a large number of LCRA injury claims, but many of those haven't been paid in full, because Qaddafi broke his promise and didn't transfer sufficient funds to the State Department. Other claims haven't even been processed through the Commission, because the terms of two of the three Commissioners expired, leaving the Commission without a quorum. The Obama Administration finally nominated a new Commission chairman, and he awaits Senate confirmation. (**UPDATE, March 10**: The Senate confirmed Timothy Feighery as FCSC Chairman, which enables the FCSC to adjudicate claims to a final decision.)

But the lack of a Commission quorum isn't the only problem. The Commission staff decided, on its own, to question the legitimacy of a number of claims and denied many. In one egregious example, it has preliminarily denied the claim of one survivor of the April 1986 Berlin LaBelle Discotheque bombing, an Army infantryman. The Army awarded him a Purple Heart for what the citation described as "wounds received in West Berlin, Federal Republic of Germany, as a result of an international terrorist attack." Yet the Commission has refused to recognize it, even after a new physical exam at the Mayo Clinic confirmed the extent of the bombing injuries. No other LaBelle survivor has had to tender any medical records.

The State Department and the Commission have also declined to approve payments based on a lack of continous citizenship from the moment of the attack to the enactment of the LRCA. But the LCRA does not state that these claimants must have been a national of the United States at the time of the attack, it simply refers to "claims of nationals of the United States," meaning those nationals on the date of enactment in 2008. So the State Department denied payment to a U.S. citizen who was a lawful permanent resident of the United States at the time of the particular terrorist attack, became a United States citizen through naturalization, and was a U.S. citizen at the time of the enactment of the LCRA in 2008. In another case, the citizenship of the victims' wife has become an issue, despite the total lack of legal authority to deny payment to a decedent's survivor.

Numerous foreign victims of Qaddafi's terrorism are now asking President Obama to rescind that section of President Bush's Executive Order that led to the dismissal of their claims. Given that Qaddafi has already violated the terms of the LCRA mandating sufficient funding, it would only be logical and prudent to allow the foreign victims to exploit existing U.S. law to seek compensation for deaths and injuries suffered in the same attack as American victims.

Finally, any shortfall in funds available to compensate victims can now easily be addressed, through a transfer of frozen Libyan bank accounts to the State Department for the purpose of satisfying Libya's agreement under the LCRA.

I've posted several times about my appearances on the What's Up radio program, hosted by Christian broadcaster and 7th Amendment champion Terry Lowry, on KKHT-FM in Houston. Terry is strongly committed to the use of the civil justice system for the protection of life and religious liberty and the preservation of the right to trial by jury. On his program, I've discussed the history of the 7th Amendment, Ronald Regan's personal stance on tort reform, and the current attempt in Congress to impose an anti-Constitutional and unjust federal limit on all health care lawsuits. His other frequent guests include Ken Connor, noted trial attorney and Chairman of the Center for a Just Society, and Houston attorney Mark Lanier. Starting this past Tuesday, Terry was able to deliver that message into 11 additional radio stations, and his program is now available in ten states. Several segments a week will be dedicated to civil justice issues and the importance of the right to trial by jury, from a conservative and religious perspective. The American Association for Justice, one of my clients and the largest association of trial attorneys in the world, is co-sponsoring Terry's show, for which all proponents of the 7th Amendment can be thankful. Here below are the list of new stations and times on which Terry's program will now appear (or you can listen live on the website of KKHT-FM in Houston at 2pm EST every weekday) - all times are Eastern time:

KLNG-AM 1560 (Omaha, NE)
11:30am-12:00noon Monday-Friday

KCNW-AM 1380 (Kansas City, MO)
4:00-4:30pm Monday-Friday

WLMR-AM 1450 (Chattanooga, TN)
12:00-12:30pm Monday-Friday

WBXR-AM 1140 (Huntsville, AL)
9:30-10:00am Monday-Friday

WWNL-AM 1080 (Pittsburgh, PA)
3:30-4:00pm Monday-Friday

WBRI-AM 1500 (Indianapolis, IN)
6:00-6:30pm Monday-Friday

WYYC-AM 1250 (York/Harrisburg/Lancaster, PA)
5:30-6:00am Monday-Friday

WSKY-AM 1230 (Asheville, NC)
6:30-7:00am Monday-Friday

KXKS-AM 1190 (Albuquerque, NM)
5:30-6:00pm Monday-Friday

WIJD-AM 1270 (Mobile, AL)
8:30-9:00pm Monday-Friday

WNVY-AM 1070 (Pensacola, FL)
6:00-6:30pm Monday-Friday

My representative in the Virginia House of Delegates, Rep. Dave Albo, sent his constitutents a letter recently with some interesting news. He had been a guardian ad litem for abused and neglected kids in the 1980s and had witnessed the horrific impact of child molestation. So he was surprised to find out that the statute of limitations in Virginia for civil suits against a molester was only 2 years. To provide a much longer period within which the victim may exercise 7th Amendment rights and recover damages from the molester to pay for treatment, Rep. Albo sponsored HB 1476 to increase the statute of limitations to 25 years (see the last paragraph of the linked document). The House of Delegates passed the bill with a statute of limitations of just 8 years from the abuse, or in the case of a victim suffering from repressed memory syndrome, from the date the abuse is remembered. The state Senate increased that period to 20 years, and the House of Delegates accepted the Senate amendment as the Virginia legislative session drew to a close. I would note that there is no statute of limitations for a criminal charge. The bill awaits the Governor's signature, and I assume he will sign the bill.

Congratulations to Rep. Albo for his vigilance on behalf of the victims of child sexual abuse. I hope 7th Amendment champions and state legislatures across the country will review their state laws and appropriately increase the statutes of limitations for civil suits against child sexual abusers. This should be a nationwide effort.

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