April 2011 Archives

But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State's action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California's law, not to strike it down. We do not honor federalist principles in their breach.

So wrote that noted champion of the 7th and 10th Amendments, Supreme Court Justice Stephen Breyer, on the last page of a dissent from a majority decision today that pre-empts and overrules California consumer protection law in favor of the Federal Arbitration Act ("FAA"). Yes, I'm joking - I don't see Justice Breyer's name on many lips of Constitutional conservatives or Tea Party websites. And in fact, Justice Breyer has sided with pro-pre-emption Justices in other cases, notably over medical device regulation, a subject I addressed last year. But in the decision announced today in AT&T Mobility LLC v Concepcion, Justice Breyer and the three other Democrat-nominated Justices supported states' rights and dissented from the majority's pre-emption hammer. In so doing, they supported states which want to allow their citizens to exercise their 7th Amendment right to a civil jury trial when trapped by forced arbitration clauses in a consumer contract (in this case, a cell phone contract).

In contrast, each of the Republican-nominated Justices, led by Justice Scalia (who apparently has never met a pro-pre-emption argument he didn't like), struck down California state law and court decisions enabling class action lawsuits against forced arbitration clauses in consumer contracts. So even when a state acts to protect its citizens from such abusive contracts, the FAA trumps the state law. When faced with language in Section 2 of the FAA that should protect states' ability to revoke any contract ("save upon such grounds as exist at law or in equity for the revocation of any contract"), the majority flattens it:

Although ยง2's saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives

So Constitutional principles like states' rights and civil jury trials are "obstacles" to be removed or ignored.

Justice Thomas was the swing vote in this case, but still voted to abandon states' rights. He hesitated before joining the assault by writing a concurring opinion in which he asserts that he adheres to views on pre-emption expressed in a previous opinion, Wyeth v. Levine on the regulation of drugs, but then he "reluctantly" joins the Court's opinion.

The practical impacts of the decision could be enormous. As the dissent notes, it will force an end to many class actions, as few consumers and fewer attorneys will bring an individual case for small amounts of damages. Forced arbitration clauses are now buried in consumer contracts for everything from computers, credit cards and cell phones, to employee handbooks and nursing home admissions contracts. The decision also threatens the rights of employees as well. Employers are increasingly inserting arbitration clauses, with bans on class action suits, into employment contracts. It will be far more difficult for employees to fight discrimination, because they will be unable to file class action suits.

If the 7th and 10th Amendments are to be reinvigorated, Congress will have to take specific and strong action to enable Americans to opt out of forced arbitration clauses in consumer and employment contracts.

On December 15, I posted about a bill proposed by Texas Governor Rick Perry to force a losing plaintiff in a civil suit pay all legal costs for the defendant, a revolutionary step away from the American rule, in effect for over 200 years, to the British rule of "Loser Pays." I discussed the reasons why Texans should reject such a move. Now I hear that the Texas legislature might make a bad bill even worse. Attorney Steve Waldman of Houston sent the following to his e-mail list this week:

The initial "Loser Pays" bill applied only to "abusive civil actions." However, a jury finding against a plaintiff might also find the lawsuit "an abuse of the civil justice process," which was all it took to bankrupt both the plaintiff and his lawyer. Such a law would scare plaintiffs with legitimate claims away from filing lawsuits. The new version of "Loser Pays"... permits defendants to recover their litigation costs in all lawsuits, not just "abusive civil actions." It throws small businesses under the bus by including breach of contract cases. The new law also allows for unlimited recovery of costs against winning or losing plaintiffs, meaning a plaintiff can win a lawsuit and owe the defendant money! Any plaintiff - winner or loser - can be forced into bankruptcy!

Steve sent me the original version of the bill, and the newer (and worse) version. I invite Texas attorneys and other "7th Amendment advocates" there to review the bills, then contact your state representatives and tell them to reject the entire concept. It's a smack in the face of the Founding Fathers' vision for the right to have a local jury hear a citizens' claims, since it erects economic barriers to the filing of a suit. I'll bet Texas doesn't make it more expensive for its citizens to bear arms in self-defense!

The other strange aspect of this issue in Texas is the inaction of two important groups of attorneys in Texas. First, the state bar association hasn't issued an official statement for or against the bill; and second, the official association of Texas defense attorneys seems to be all over the ballpark on it. The defense attorneys were against the original bill but are apparently happy with the revised version. Little do they realize that "tort reforming" away civil suits not only abridges unalienable rights, but eventually reduces the need for defense attorneys.

And where are the Tea Party groups in Texas? Why aren't they raising hell about the business community stripping Texans of their rights?!

I've already posted several times on the impact of limits in Texas law on medical malpractice lawsuits. A sweeping "Loser Pays" statute is a clear and present danger to Texans, and they should tell their legislators to reject it.

Last week, I posted on the interview of Rep. John Duncan, conservative Republican and trial lawyer by profession, by Christian broadcaster Terry Lowry on the What's Up radio show, which is broadcast on 12 stations in 10 states, thanks in part to co-sponsorship by the American Association of Justice. Terry Lowry has broadcast a number of other pro-7th Amendment interviews this month, as follows (with links to the audio files):

April 19: Interview with attorney Ryan Hodge of Hodge & Associates, LLC in Kansas, on the topics, "What do you do to a business that knowingly harms its customers, and is there a Biblical basis for our civil justice system?" Listen the Segment 1 here and Segment 2 here.

April 15: My interview on proposed federal legislation which would protect property owners from unfair eminent domain actions undertaken to promote private development. The legislation, The Private Property Rights Protection Act, would create a private right of action to enable property owners to sue municipalities. I posted about this bill on April 11 and on the paradox - hypocrisy, really - that Republicans who are fighting to limit civil suits against negligent health care providers for deadly medical errors suddenly want to enable property owners and their trial lawyers to file lawsuits to keep their homes. Listen to the interview here.

April 13: Interview with attorney Mary Alice McClarty of the McClarty Pope firm in Dallas, on the thousands of preventable medical errors every year and the need to enable the victims to hold health care providers accountable. Listen to Segment 1 here and to Segment 2 here.

April 12: Interview with Professor Rob Natelson, Senior Fellow in Constitutional Studies at the Independence Institute, on the unconstitutionality of H.R. 5, the proposed bill to limit health care-related lawsuits and shield providers from deadly medical errors. Professor Natelson, one of the most respected of all Tea Party-side Constitutional experts, wrote to the chairmen and ranking Democrats of two House committees with his judgment of the bill (download letter here), then posted his criticism on two major Tea Party websites, those of the Independence Institute and the Tenth Amendment Center, and I posted about it on April 5. Listen to Segment 1 of the interview here and to Segment 2 of the interview here. Professor Natelson's letter is the single most important opinion to date on the constitutionality of H.R. 5 and appears to be having an impact on the prospects for the bill.

April 8: Interview with Alex Winslow of Texas Watch, on the history of limits in Texas on medical malpractice lawsuits; whether medical review boards in Texas are sanctioning negligent doctors; and whether limits on medical malpractice lawsuits have had any impact on the quality and cost of health care. Listen to Segment 1 here, to Segment 2 here, and to Segment 3 here.

April 6: My interview on the real causes of deadly medical errors and doctors' shortages, especially in Texas, a subject of a post here on March 23. Listen to Segment 1 here and to Segment 2 here.

April 5: Interview with attorney Jere Beasley of the Beasley Allen firm of Montgomery, Alabama, on the nine deaths in Alabama hospitals occurring after receiving contaminated intravenous supplements, another example of the dangers of shielding health care providers from immunity. Listen to the interview here.

April 4: Interview with attorney Rob Sachs of Shrager, Spivey & Sachs in Philadelphia, on the sad reality that incidents of abuse and neglect in nursing homes continue to rise. More than 30 percent of seniors living in nursing homes or assisted living facilities have reported abuse. But only 20 percent of abuse incidents reported. Listen to Segment 1 here and to Segment 2 here.

Here are the radio stations on which you can listen to the "What's Up" radio program on weekdays and the broadcast times (Eastern time):

KKHT-FM 100.7 (Houston)
2:00-3:00 pm - also webcast from KKHT's website

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

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

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

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

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

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

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

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

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

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

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

On this website, I discuss the basis in Constitutional law for the civil litigation process and the right to a jury trial for civil suits. That right has practical and beneficial impacts, as described in an op-ed over the weekend in the Washington Post.

Gibson Vance, President of the American Association for Justice (AAJ), the largest trial lawyers' association in the world, wrote, How Our Cars Got Safer, summarizing how litigation against auto manufacturers is one reason for the drop in trafic deaths to the lowest level in over 60 years. "(W)ithout the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed." Mr. Vance cited as examples the famous Ford Pinto gas tank explosion case and a gruesome case in which a power window strangled a child.

Mr. Vance wrote his op-ed based on a detailed study conducted by AAJ of changes in auto safety as a result of civil litigation and the exercise of the 7th Amendment right to a civil jury trial. On a special page on the AAJ website, you can download AAJ's report, "Driven to Safety: How Litigation Spurred Auto Safety Innovations," and an interactive graphic showing you which car parts, now standard in every car, were forced upon the industry thanks to lawsuits (it's a pretty neat graphic). From door latches to the tires to electronic stability control, many of the most important safety features of your car were installed after civil suits won by Americans with the help of their trial lawyers.

AND - that's not the only consumer product positively impacted by civil suits. AAJ also has conducted studies of the impact of civil litigation on toys used by our children and on the treatment of our elderly relatives and friends by nursing homes (each with neat and educational interactive graphics). As Mr. Vance wrote in his op-ed, "History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits."

Let your relatives and friends know about these studies and tell your Congressmen. Civil litigation is not only Constitutional, it saves lives too.

I have faith in the people - I have faith in the jury system. It's one of the most important elements of our freedom, and it was so recognized in the Constitution, was felt to be so important, it was specifically put into the Constitution in the 7th Amendment. And I'll tell you, it's a very dangerous thing to take away rights like that from the people... In fact, I can tell you, you have better regulation by juries than you have by federal government regulators - it's more effective.

Rep. John Duncan, Jr., Republican from Tennessee, said that on Monday when he was interviewed by Christian broadcaster Terry Lowry on the What's Up radio show, which is broadcast on 12 stations in 10 states, thanks in part to co-sponsorship by the American Association of Justice. I've met with Rep. Duncan several times this year, and his allegiance to Constitutional principles of limited government is clear and consistent. He enjoys discussing his career in Tennessee as a trial lawyer, and how he helped plaintiffs to exercise their 7th Amendment right to a civil jury trial. On "What's Up," he discussed this issue and the deterioration of states' rights over the past several decades and called for their rejuvenation.

Terry Lowry asked Rep. Duncan for his opinion of H.R. 5, the bill to severely limit civil suits against all health care-related businesses, including nursing homes and insurance companies. Rep. Duncan said it's a bad idea, and he discussed his faith in the jury system, in the people who sit on local juries, and explicitly in the 7th Amendment ("one of the most important elements of our freedom"). He decried the steady reduction in the steady number of jury trials in recent years, a topic on which I posted last year. And he reiterated what the Founding Fathers always knew, that local juries are more effective in controlling egregious behavior than any federal regulator.

UPDATE: You can download and listen to the entire interview with Rep. Duncan from the What's Up website (MP3 file).

Rep. Duncan is a true Constitutional conservative and patriot, and his constituents are blessed to have such a man represent them in Congress.

On Tuesday afternoon, the U.S. House Judiciary Subcommittee on the Constitution will hold a hearing on a bill introduced last week, H.R. 1433, titled The Private Property Rights Protection Act of 2011. Co-sponsored by a bipartisan group of Representatives - yes, including many Republicans - the bill is aimed at stopping municipalities from condemning private property for private land development. Among the witnesses will be Ms. Lori Ann Vendetti, a homeowner in Long Beach, New Jersey, one of a group of homeowners who successfully fought the city's efforts to take their homes and allow developers to make millions building upscale condos.

The hearing and bill should be of great interest to anybody who promotes and advocates Americans' right to utilize the civil litigation process and the rights protected by the 7th Amendment to a jury trial for civil suits. Section 4 of the bill creates a private right of action to fight local eminent domain actions, as follows:

SEC. 4. Private right of action.

(a) Cause of Action.--Any (1) owner of private property whose property is subject to eminent domain who suffers injury as a result of a violation of any provision of this Act with respect to that property, or (2) any tenant of property that is subject to eminent domain who suffers injury as a result of a violation of any provision of this Act with respect to that property, may bring an action to enforce any provision of this Act in the appropriate Federal or State court. A State shall not be immune under the 11th Amendment to the Constitution of the United States from any such action in a Federal or State court of competent jurisdiction. In such action, the defendant has the burden to show by clear and convincing evidence that the taking is not for economic development. Any such property owner or tenant may also seek an appropriate relief through a preliminary injunction or a temporary restraining order.

(b) Limitation on Bringing Action.--An action brought by a property owner or tenant under this Act may be brought if the property is used for economic development following the conclusion of any condemnation proceedings condemning the property of such property owner or tenant, but shall not be brought later than seven years following the conclusion of any such proceedings.

© Attorneys' Fee and Other Costs.--In any action or proceeding under this Act, the court shall allow a prevailing plaintiff a reasonable attorneys' fee as part of the costs, and include expert fees as part of the attorneys' fee.

This is precisely one of the scenarios that the Founders designed when drafting the Bill of Rights - the individual fighting in court to protect his property rights against the power of the sovereign. On these pages, I've been warning those conservative groups which back "tort reform" that civil suits and trial lawyers are the expression of our unalienable right to a civil jury trial, that the civil litigation process has its roots in centuries of American and British law back to the Magna Carta in 1215, and that there are numerous conservative causes for which trial lawyers file civil suits every day. Last September, I wrote Seven Reasons Why Protecting 7th Amendment Should Be Republican & Tea Party Priority, and Reason No. 3 was Civil Suits Protect Religious Liberty, Gun Rights, and Property Rights, and I specifically mentioned those lawsuits filed against unfair eminent domain actions. But I haven't seen a lot of acceptance by many mainstream "conservative" groups of this piece of basic American philosophy and history. Instead, much of the energy this year in Congress is being directed at "tort reforming" our unalienable rights away when any health care-related lawsuits, through attempting to enact H.R. 5, which I've discussed often on this site.

It's fascinating that many of the Republican co-sponsors of H.R. 1433 are also co-sponsors of H.R. 5. The two bills couldn't be more contradictory in intent, spirit, and basis in American Constitutional law. It should make the hearing interesting to watch, which you can do from the committee's website, linked above.

The U.S. House Budget Committee Chairman, Rep. Paul Ryan, unveiled a budget proposal designed to cut trillions in federal spending and the deficit. Inside the 73-page proposal, in a section titled, "Fulfilling the Mission of Health And Retirement Security For All Americans," is a short paragraph which would cap non-economic damages in medical liability cases:

Ensure that the cost of frivolous litigation is not passed on to consumers in the form of higher health-care premiums by capping non-economic damages in medical liability lawsuits. (Page 44.)

I'm always searching the writings of the Founding Fathers to write on their devotion to the unalienable right to bring civil suits before a local jury of our peers, as guaranteed by the Seventh Amendment to the Constitution and centuries of American and pre-colonial British law. My work has taken a turn into the development of the Commerce Clause and the interaction of that clause with the Bill of Rights, including not just the Seventh, but also the Tenth Amendment on states' rights. In that regard, a quote by a delegate to the Constitutional convention in 1787 and voted to ratify Constitution, who later served as a historic Chief Justice of the Supreme Court, is pertinent to any discussion of the meaning and scope of the Commerce Clause. Chief Justice John Marshall established the Supreme Court's initial interpretation of the Commerce Clause in Gibbons v. Ogden, 22 U.S. 1 (1824). Many politicians and commentators argue that Gibbons supports an expansive reading of the Commerce Clause in order to support their political views for pre-emption of state laws and courts (many Republicans) or for ObamaCare (many Democrats), but they conveniently (or purposefully) overlook one key paragraph of Marshall's opinion:

That inspection laws may have a remote and considerable influence on commerce will not be denied, but that a power to regulate commerce is the source from which the right to pass them is derived cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labour of a country, to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. (Emphasis mine.)

So Marshall explicitly stated that "health laws of every description" are reserved for the states and should never be the subject of federal legislation. Marshall's express limitation on federal power under the Commerce Clause is a key element in an objection to H.R. 5, the bill to limit all health care-related suits, posted on the Independence Institute's website by Rob Natelson, conservative Constitutional scholar and Senior Fellow in Constitutional Jurisprudence at the Institute. Natelson wrote to Congress with a complete Constitutional analysis of the bill, which you can download from here (4.7MB Acrobat file). I posted a short summary of that bill here on Tuesday. But a particular quote merits special attention:

In the Constitution, the word "Commerce" encompasses trade in goods among merchants and certain related activities, such as commercial paper, transportation, and cargo insurance. It does not include other economic activities, and it certainly does not include health care or the states' administration of civil justice.

I urge readers to send their Congressman, especially any Republican, a copy of the Natelson letter to prove to them that a highly respected Tea Party-side Constitutional scholar condemns Congressional efforts at "tort reform," and not just over health care-related cases.

The nonpartisan National Conference of State Legislators has informed Congress of its "strong, bipartisan opposition" to the enactment of H.R. 5, the bill to sharply limit all civil suits against health care providers, including nursing homes, hospitals, and insurance companies. In the letter, NCSL defended the rights of the states to enact its own liability statutes and hold companies accountable before local juries. NCSL is also planning meetings of state legislators with Republican Congressmen to urge them to stand up for the rights guaranteed in the Constitution and Bill of Rights. You can download the entire letter, and here are some excerpts:

"Medical malpractice, product liability and other areas of tort reform are areas of law that have been traditionally and successfully regulated by the states. Since the country's inception, states have addressed the myriad of substantive and regulatory issues regarding licensure, insurance, court procedures, victim compensation, civil liability, medical records and related matters. In the past two decades, all states have explored various aspects of medical malpractice and products liability and chosen various means for remedying identified problems. Over the past several years, states have continued to revise and refine their medical malpractice laws and procedures...

Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law. All 50 states have statutes of limitations for medical malpractice suits. All 50 states have rules of civil procedure governing the admissibility of evidence and the use of expert witnesses. Many states have caps on noneconomic damages and limitations on attorney's fees in medical malpractice cases...

NCSL's opposition will extend to any bill or amendment that directly or indirectly preempts any state law governing the awarding of damages by mandatory, uniform amounts or the awarding of attorney's fees. Our opposition also extends to any provision affecting the drafting of pleadings, the introduction of evidence and statutes of limitations. Furthermore, NCSL opposes any federal legislation that would undermine the capacity of aggrieved parties to seek full and fair redress in state courts for physical harm done to them due to the negligence of others."

The NCSL letter is signed by one Democratic and one Republican legislator. The Republican, Jerry Madden, is a conservative, West Point grad and Vietnam vet from Texas, home of numerous Congressmen involved in the tort reform battle. The NCSL letter arrives just after the opinion by Rob Natelson, top Tea Party-side Constitutional law expert, that federal tort reform is an excessive use of the Commerce Clause and violates the Bill of Rights. Readers should tell their Congressmen that the evidence is growing of the unconstitutionality of H.R. 5 and other attempts to take over the state-based civil litigation process.

Rob Natelson, one of the leading Constitutional scholars of the Tea Party movement, declared on Tuesday that "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments." That bill, as I've described numerous times here, would place new federal limits on lawsuits filed against a broad range of health care-related companies, including doctors, hospitals, drug & device companies, insurance companies, and nursing homes. Professor Natelson is an expert on the Founding Era; a former Republican candidate for Governor of Montana; and now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado, a non-partisan, free-market-oriented public policy research organization. Writing in his personal capacity to the Chairmen and ranking Members of the House Judiciary and Energy & Commerce Committees, he cited the Founders' writings for concluding that (1) civil actions in state and federal courts are not "commerce" under the Commerce Clause; and (2) H.R. 5 is not justified under the Necessary and Proper Clause. Moreover, according to Professor Natelson, the proper interpretation of the Commerce Clause excludes "health laws of every description," a phrase used by Supreme Court Chief Justice John Marshall in the landmark case of Gibbons v. Ogden, 22 U.S. 1 (1824). Finally, Professor Natelson asserts that the section of H.R. 5 which purportedly protects states from pre-emption "grants protection only when the state undertakes policy choices preferred by Congress." He describes that section as "more in the nature of an insult to the states than a protection of federalism."

Professor Natelson also posted the letter on The Electric City Weblog in an entry titled, Yet MORE disregard for the Constitution -- this time from Republicans. You can download Professor Natelson's letter from that site (4.6 MB Acrobat). I hope you will disseminate his letter widely.

About this Archive

This page is an archive of entries from April 2011 listed from newest to oldest.

March 2011 is the previous archive.

May 2011 is the next archive.

Find recent content on the home page or look in the archives to find all content.