July 2011 Archives

Over the course of the year, I've quoted constitutional scholar Rob Natelson of the Tea Party-side Independence Institute numerous times, for his clear writings condemning a federal bill to limit damages awarded in medical malpractice and other health care-related lawsuits. He continues to analyze the original writings of the Founding Fathers to determine their intentions for the scope and shape of the powers enumerated to the federal government in the Constitution.

Writing recently on the pages of the Tenth Amendment Center, Natelson wrote an article titled, "The Greatly Misunderstood Chief Justice John Marshall." In it he discussed the twisting of Marshall's legacy by historians to justify judicial activism. Included in the discussion is an analysis of Marshall's rulings in key cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), the case often cited for an expansive view of the Commerce Clause by proponents of both ObamaCare and a federal tort reform bill to override state court systems. Natelson describes the actual intention of Marshall's rulings in those two cases:

Marshall's treatment of the Necessary and Proper Clause in McCulloch v. Maryland is widely misunderstood by people who (A) don't know the law of the time, (B) haven't read the entire opinion, and/or © don't know that two of the words Marshall used--"convenient" and "appropriate"-- had narrower meanings in his time than they have today. Marshall himself explained the decision in a subsequent series of op-eds, where he acknowledged that the Necessary and Proper Clause is not a grant of power at all, but an interpretive guide.

Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the "commerce" component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity "substantially affecting" interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana--in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of "commerce" for constitutional purposes--a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court's dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress's power. He specifically mentioned "health laws of every description" as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall's words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry.

Americans are fortunate to have someone like Rob Natelson who has the ability and time to dig into the details of the foundational documents of our nation and educate us on the limits on federal power as intended by the Founders.

On March 23 and on March 18, I discussed the real causes of deadly medical errors and some of the myths surrounding medical malpractice claims, including facts about the impact of capping damage awards in medical malpractice lawsuits.

In 2003, Texans were promised that if they capped noneconomic damages in medical malpractice awards, they would eventually see a reduction in their total health care costs, and they bought the claim. Texas enacted one of the toughest bills in the country capping medmal award damages. Almost eight years later, that hasn't happened at all.

One study of data on Medicare spending in Texas for years following the enactment of the law shows the following: "Not only has per person Medicare spending in Texas continued to exceed the national average, the data also show that such spending rose at nearly twice the national average (15.1% versus 8.7%) in the four years since the medical liability reform legislation was passed. Furthermore, before such 'cost-saving' legislation went into effect, per person Medicare reimbursement rates in Texas were the tenth highest in the nation. In 2007, reimbursement rates in Texas had risen to the second highest. None of this is resounding evidence that tort reform has been successful in controlling health care costs."

And a new review by the Dallas Morning News shows that since the medmal law was enacted in 2003, family and single health insurance premiums rose by 51 and 45 percent, respectively, roughly equal to the increase nationwide. Even the President of the Texas Medical Association, the doctors' lobby in Texas, admitted, "(W)e haven't seen the overall cost of medical care go down."

The Dallas Morning News review showed that medical malpractice insurance premiums for doctors in Texas have decreased since the law was enacted. But that's been a nationwide phenomenon, according to Congressional testimony by Joanne Doroshow of the Center for Justice and Democracy in January (see the bottom of page 11). Moreover, as she pointed out, "Premiums have dropped irrespective of whether 'tort reforms' were enacted in any particular state, such as Texas. States with little or no restrictions on patients' legal rights have experienced the same level of liability insurance rate changes as those states that enacted severe restrictions on patients' rights." So the drop in Texas medmal insurance premiums isn't necessarily attributable to the enactment of the medmal law. And in any event, the patients haven't seen any benefit from that reduction. My thanks go to Mary Alice McLarty of the McLarty Pope law firm in Dallas for sending me the DMN chart.

Over 40 states have already enacted some form of state "tort reform," many with the promise of lower costs to consumers. I would like to read ANY reliable study that finds that ANY state law capping medical malpractice awards was followed by a drop in health care costs in that state, but I doubt that any such study exists.

Longtime readers know of my opposition to ObamaCare on constitutional grounds. Proponents of that law also promised lower health care costs, and that hasn't happened either (my insurance premiums are up almost 30% since it was enacted). The "medmal reform" leaders are the same medical groups who salivated at the thought of millions of new customers, forced to buy insurance by ObamaCare, and that raises two questions: (1) Why are Republican state legislators working so hard this year to reward the co-conspirators in the enactment of ObamaCare, a law that so many state AGs are suing to overturn in federal court?! (2) Why should we believe those medical groups claiming lower health care costs from "medmal reform" when they misled us about ObamaCare's benefits and shoved the individual mandate down our throats? I don't get it!!

Recently the West Virginia Supreme Court ruled that a new state law imposing caps on noneconomic damages in medical malpractice awards was constitutional, ignoring the fact that the West Virginia Constitution protects the right to a jury trial for civil suits with identical language as the Seventh Amendment to the U.S. Constitution. A visiting circuit court judge who assisted the Supreme Court in that case dissented strongly, with a vigorous and detailed assertion that damage caps effectively abridge the constitutional rights of West Virginia citizens. Here are excerpts from Circuit Judge Ronald Wilson's 12-page dissenting opinion, released Friday afternoon and sent to me by Joseph Rice and Victoria Antion Nelson of the Motley Rice law firm:

The West Virginia Legislature made a purely political decision and violated the West Virginia Constitution when it drastically reduced the cap on noneconomic damages in medical malpractice cases from $1 million to $250,000, in most cases. When the Legislature turns against its constituency in favor of pressure groups with selfish interests, it is the peoples' right to seek help from their Supreme Court, and it is the duty of the judicial branch to exercise its proper role in the 'separation of powers' to void legislation that violates the constitutional rights of its citizens...

Not affecting fundamental rights? The right to a trial by a jury is the most fundamental of our constitutional rights. Query: If a person has a right to a jury trial and the jury award is completely taken away, did that person have a court open to him for an injury done to him? Did he have a remedy? Was justice administered without denial? Did he have his constitutional right to a jury trial? How could the majority in MacDonald avoid the reverberating 'NO' answer to these questions when the answer had been clearly stated in several West Virginia cases... 'In other words, 'when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication of cases, then the certain remedy provision of Article III, Section 17 of the West Virginia Constitution is implicated.' Syl. pt. 6, in part, Gibson v. West Virginia Dep't of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991)...

The Court's degrading of the right of a jury trial in a civil case in West Virginia is in square conflict with the United States Constitution. The phrases used in the United States Constitution and the West Virginia Constitution for granting the right to a civil jury trial are almost identical. For our Supreme Court to suggest that the right to a jury trial in West Virginia is not as great as that in another state that uses the phrase "the right to trial by jury shall remain inviolate" in its constitution makes no sense. If the Federal right to a jury trial is based upon the phrase "the right of trial by jury, if required by either party, shall be preserved" and West Virginia's constitutional right to a jury trial is based upon the phrase "the right of trial by jury, if required by either party, shall be preserved" is our Supreme Court being a bit iniquitous to even suggest that the right to a jury trial in West Virginia is not as great as it is in, for instance, the state of Georgia? (Editor's Note: The Georgia Supreme Court ruled in 2010 that damage caps in medmal cases violate the Georgia constitution.)

Not affecting fundamental rights? The right of equal treatment is also a very fundamental right. How can a damage cap that blatantly favors a special class of medical professional by limiting or taking away the damages an injured person may recover from a medical professional be constitutional? No other person who negligently injures another person is given that unconstitutional protection. Would any West Virginia legislator suggest that lawyers be given that special protection? I doubt it...

Although we wish it were not so, all judges have audiences that they seek to please. With these audiences and with the natural desire to win expensive elections, it is essential for judges and justices to always remember the importance of the protections given to all people in our State and Federal Constitution and to decide disputes based on those cherished documents. In many cases that means a decision that displease a majority of the voters. It may mean that a judge's audience will be unhappy with the decision. But an independent judiciary has to protect the rights of minorities as well as the rights of the majority. And an independent judiciary has to protect the rights of victims of medical negligence as well as the rights of doctors who are overcharged by insurance companies...

The battleground for the fundamental right to a civil trial by a local jury is shifting from Washington to the states, with many imposing damage caps in the face of their own constitution. Judge Wilson's dissent should be carried into courtrooms throughout the country.

"Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That's New York, and that's their business, and that's fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business."

That's Gov. Rick Perry of Texas, quoted by the AP and repeated in Politico yesterday. So obviously, Gov. Perry should be in favor of protecting state tort law regimes and against federal tort reform, right?! After all, his fellow Texans, Rep. Ron Paul and Tea Party Patriots co-founder Mark Meckler, are already on record against it, and another Texas Republican, Rep. Ted Poe, is against H.R. 5, the medical malpractice tort reform bill pushed by Texas Republican Rep. Lamar Smith.

We need a clear statement from Gov. Perry on his stand on federal tort reform if he runs for President. Either he's the real deal like Ron Paul, or he's just another inconsistent "Constitutional conservative" like Michele Bachmann and all of the other GOP Presidential candidates right now.

The Gang of Six proposal includes a sentence to save "an unspecified amount through medical malpractice reform." But that's unconstitutional. Sen. Coburn said so three weeks ago when he compared the idea to ObamaCare: "What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be." Conservative Professor John Baker, a Federalist Society superstar, says enacting national medmal reform could boost ObamaCare - "Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism..." Anti-ObamaCare Professor Randy Barnett also says federal tort reform is unconstitutional: "Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power." Conservative and anti-ObamaCare legal scholars Ilya Somin and Jonathan Adler concurred with Barnett's op-ed. So did tort reform advocates Walter Olson ("most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems") and Ted Frank (referring to Congress: "It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform"). And Constitutional scholar Rob Natelson of the Independence Institute wrote the first letter to House Republicans on this subject months ago, warning against the medmal reform bill there: "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments... Here's a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous 'Commerce Clause' claims the President uses to justify ObamaCare."

There's more. Rep. Ron Paul, a medical doctor, said during the Fox News South Carolina Presidential debate that federal medical malpractice reform is unconstitutional: "It's a state matter; tort law is a state matter." Veteran GOP Congressmen such as Rep. John Duncan agree with Sen. Coburn and Dr. Paul - "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..." And the nonpartisan National Conference of State Legislators wrote to Congress slamming H.R. 5, the "medmal reform" bill: "Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law." Mark Meckler, Tea Party Patriots co-founder and coordinator, says "'It's not for the federal government to be adjusting the legal system of individual states." This week, veteran social conservative leader Ken Connor, former President of the Family Research Council, criticized federal tort reform as unconstitutional.

I'm disappointed that Sen. Coburn flip-flopped on his statement of three weeks ago and that the Gang of Six didn't research the constitutionality of the medmal proposal before including it. There are lots of great ideas for reducing health care costs out there in the medical community, readily available to anyone who has an Internet connection. The rest of Congress shouldn't ignore the Constitution and should drop that sentence from future deliberations.

Social conservative leader Ken Connor was interviewed on Tuesday on the What's Up radio program, hosted by Terry Lowry and broadcast nationally thanks to co-sponsorship by the American Association of Justice. Ken is not only a colleague in advocating the right to a jury trial under the 7th Amendment, but he introduced me to Terry Lowry and proposed the expansion of Terry's program to a nationwide basis, for which my readers can be very grateful. Ken was the President of the Family Research Council, is a longtime pro-life activist and leader, and founded and chairs the Center for a Just Society. He's also a veteran trial lawyer with an outstanding record of representation for his many clients.

Ken discussed the basic safeguards in criminal cases that our Founding Fathers recognized in the Constitution and Bill of Rights, how those safeguards were reflected in the Casey Anthony trial, and how the verdict validates the Founders' vision. He reminded listeners that the Founders thought of the right to a jury trial for criminal cases and civil cases together. He talked about many of the points I've written about here: the Biblical basis for the jury system; the 1000+-year-old use of the jury system around the world; the Founders' inclusion of the right to a jury trial in our founding documents; and their insistence on protection in the Bill of Rights as a "cherished right."

He then turned towards the debate on "tort reform" in civil cases, noting that it is critical that an accused in either a criminal or civil case needs to have the opportunity to present his case before a local jury of peers. Terry Lowry and Ken reminded listeners of the importance of the Seventh Amendment right to a civil jury trial system to protect our First Amendment right to the free exercise of religion, the Second Amendment right to bear arms, and so on. Ken criticized those members of his political party, the Republican Party, who seek to give corporations a free pass for tortious actions by violating the Constitutional rights of all Americans.

Ken Connor is a true "Constitutional conservative" who cherishes EVERY amendment in the Bill of Rights. You can hear Part 1 of the interview here and Part 2 of the interview here.

On June 28, I posted, Compensate Qaddafi's Terrorism Victims Before Funding Unknown Rebels, in response to the introduction of a bill which would have authorized the use of some portion of the $30 billion in assets seized from Muammar Qaddafi for humanitarian relief to and for the benefit of the people of Libya. In fact, the proper use of the aid would have been dependent upon the integrity and credibility of the rebel leaders. I wrote, "Qaddafi's terrorism victims, including those citizens of our allies overseas, deserve full compensation for Qaddafi's crimes before we even consider shipping one dollar to an unknown group of rebels with terrorist backgrounds." The majority of the U.S. House apparently didn't trust the rebels and banned the transfer of appropriated funds to the rebels.

Tomorrow, July 20, the House Foreign Affairs Committee will take the first action on the bill to authorize State Department programs for fiscal year 2012. That bill might not be the appropriate vehicle for Congress to use in ensuring that Qaddafi's terrorism victims, here and abroad, are compensated, since the action to freeze the funds was taken by the Treasury Department. But the committee action is certainly an appropriate time to discuss the legal precedent for releasing a country's funds frozen by the Treasury Department and compensating the terrorism victims of that country. It has been done before and can be done again quite easily.

In 2000, Congress was working towards eventual enactment the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1541, a catch-all bill with numerous provisions to assist victims of domestic and international violence. Victims of Iranian-sponsored and Cuban-sponsored terrorism worked with interested Congressmen to add Section 2002, "Payment of Certain Anti-Terrorism Judgments," to the bill, which enabled the Treasury Department to pay the victims' claims out of certain assets held in funds named in the bill. That section also included a "Reaffirmation of Authority" stating that, "Congress reaffirms the President's statutory authority to manage and, where appropriate and consistent with the national interest, vest foreign assets located in the United States for the purposes, among other things, of assisting and, where appropriate, making payments to victims of terrorism."

And there is certainly a need for Congress to reconsider legislation enacted three years ago to compensate all victims of Qaddafi's terrorism. As I wrote in June and on March 8, many have not been satisfied by international efforts thus far to compensate them for the horrible atrocities committed over a 30-year period. Americans who won a court judgment worth billions against Qaddafi in federal court saw their legal action cut short by the Libyan Claims Resolution Act of 2008, and they were forced by their government to accept a sharply reduced amount. Meanwhile, scores of British and Irish victims who had filed a lawsuit in Washington with Americans were summarily tossed out of court by the LCRA, even though their claims arose from the same terrorist bombings as the American plaintiffs' claims, and the foreign claims were litigable as a matter of American law.

I also wrote in March that payments to Americans authorized under the LCRA have been denied based on arbitrary decisions by Justice Department attorneys, including the use of a "continuous nationality" rule that isn't mentioned in the LCRA. Since my June post, Eric Sorensen, Esq., wrote to me about his case involving an American citizen and her now-deceased foreign-born husband, who died in 1993. In 1987, they were kidnapped by the Libyan navy in international waters. They were held for months, including in near-freezing conditions, during which she developed severe frostbite untreated for almost a month. Although she was eventually released, he was held for nine more months in a Libyan jail. Both subsequently developed cancer, which killed the husband. She filed suit against Libya in federal court in 2000 and were still litigating the legal issues in 2008 when the LCRA forced them into the claims settlement process.

The claims settlement process has been a nightmare. The deceased husband's claim was quickly dismissed because, like the British and Irish victims cited above, he was not a citizen at the time of his capture. The wife's claim has been denied because attorneys at the Justice Department demand that she present "contemporaneous" medical records from her Libyan captors! Multiple doctors' reports on her frostbite and on years of post-traumatic stress syndrome apparently mean nothing to the Justice Department.

I've heard story after story like this from attorneys who pursue claims against Qaddafi, three years after Congress supposedly took final action to compensate them. It's time to clear the decks of all these cases, stop the administrative nightmares, and reserve sufficient frozen funds to pay ALL victims of Libyan terrorism who could pursue their claims in U.S. courts when the LCRA was enacted. Attorneys at the Motley Rice firm, one of my clients, have drafted the attached legislative proposal to do just that, and I hope Congress will initiate work on this soon. Victims from around the world who survived decades of Qaddafi's terrorism deserve a final measure of justice, and the only way they can achieve it is for the U.S. to compensate them from Qaddafi's own funds. It's the right thing to do.

Tonight at 9 pm ET, HBO will broadcast a documentary titled, "Mann v. Ford," about a class action lawsuit brought by the Ramapough Mountain Indians, who have lived for hundreds of years in northern New Jersey, 40 miles from midtown Manhattan. In the 1960s, the Ford Motor Company bought land from the Indians and began dumping toxic waste in woods and abandoned mines near their homes.

In the 1980s, the Ramapoughʼs land was added to the EPAʼs list of federally monitored Superfund sites, and then removed from the list after Ford and the EPA supposedly cleaned it up. But 80 percent of the toxic waste had been left behind, and the Indians suffered from the deadly impacts of the sludge, including cancers, skin rashes and other symptoms of toxic poisoning. The Indians eventually hired attorney Vicki Gilliam, who with another attorney filed the class action lawsuit, seeking millions of dollars from Ford as compensation. Ford denied all responsibility for the illnesses devastating the community and claimed its cleanup complied with all EPA rules.

You can read all of the details of the years of illnesses on the special website created by the Bergen Record newspaper in New Jersey, which first reported the story.

I arranged for Vicki Gilliam to be interviewed by Terry Lowry, host of the syndicated What's Up radio program, which is broadcast on 12 Christian radio stations in 10 states and co-sponsored by the American Association for Justice (my client). You can download today's podcast of the interview in two parts - Part 1 here and Part 2 here. In the interview, Vicki discussed how Ford Motor Company knew of the deadly nature of the sludge dumped onto the Indians' land; the horrible medical impacts of the sludge; how the EPA didn't force Ford to dispose of all of the waste.

Eventually the Indians settled the case with Ford, and the terms of the settlement are not public. The lawsuit resulted in the EPA's returning the site to the Superfund list, the first time a cleared site was returned to the list - a warning to the 70+ million Americans living near a Superfund-listed site.

One of the lessons emerging from this story is that Americans need to have the option of filing a class action or "mass tort" lawsuit when numerous people are harmed by the same dangerous and grossly negligent action. Too often, tortious action affecting thousands of people goes unchallenged by federal regulators, and the victims need to have the option of filing their lawsuits together. The "tort reform" movement is seeking to sharply limit the right of Americans to combine their claims in a class action; the Mann v. Ford case shows us why we can't let that happen.

What makes a real "Constitutional conservative?" Rep. Michele Bachmann claims the mantle in a Daily Caller post and sets forth some elements of her definition, such as the classic Reagan-era "three-legged stool;" a limited government with specific, enumerated powers; and respect for states' rights under the Tenth Amendment. But Joseph Lawler of the American Spectator brushes off Rep. Bachmann's attempt in a few words: "With all due respect to Rep. Bachmann, it's pretty clear that she is not the standard bearer for constitutional conservatism... Insofar as Michele Bachmann supports ideas and policies that would radicalize the Republican Party, she's less of a constitutional conservatives than the Pauls and other likeminded members of Congress."

I think Lawler owes Rep. Bachmann more specifics to support his objection, so I will propose one, the one which is relevant to this website and cause. Rep. Bachmann is not a true-blue, first class "Constitutional conservative" because she is a co-sponsor of a bill that is clearly an unconstitutional exercise of federal power at the hands of the states, namely, H.R. 5, the "HEALTH Act," which would pre-empt all state tort law over health care and medical malpractice lawsuits. There can't be any remaining doubt of the bill's unconstitutionality, considering the overwhelming authority for that position, as expressed by scholars, including those usually favorably disposed to tort reform. For starters, Rep. Ron Paul, to whom Lawler referred, has clearly stated his opposition to any federal medical malpractice bill.

Prof. Randy Barnett, perhaps the premier "Constitutional conservative" scholar in America today, says H.R. 5 and other federal tort reform bills are unconstitutional. No one understands the limitations of the Commerce Clause and the constitutional protections over states' rights like Prof. Barnett, and his condemnation of federal tort reform bills is clear:

But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits.

Prof. Barnett is joined in his opinion by fellow conservatives and tort reform advocates, namely Prof. Ilya Somin and longtime constitutional scholar and pro-lifer John Baker; pro-tort reformers like Walter Olson and Ted Frank; and conservative legal scholar Prof. Jonathan Adler. Tea Party Patriots co-founder Mark Meckler also agrees. So does the nonartisan National Conference of State Legislators, which wrote to Congress to express its outrage over H.R. 5 and federal tort reform in general. Recently, Sen. Tom Coburn opined that a federal tort reform law would violate states' rights. Rep. Bachmann's co-sponsorship of H.R. 5, despite the judgment of some of the most respected authorities among Tea Party activists, undercuts her claim of being a "Constitutional conservative."

At the least, conservatives and Tea Partiers should agree that a "Constitutional conservative" honors and protects all of the amendments in the Bill of Rights, including the 7th Amendment right to a civil jury trial and its "uncle," the 10th Amendment.

Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, and which require questions about the negligence be submitted to arbitration, to be governed by the Federal Arbitration Act.

In essence, our Constitution recognizes that factual disputes should be decided by juries of lay citizens rather than paid, professional fact-finders (arbitrators) who may be more interested in their fees than the disputes at hand.

The admission agreements in this case contain arbitration clauses that eliminate a fundamental constitutional right: the right of the parties to have a jury trial in the West Virginia circuit court system on the plaintiffs' personal injury claims against the defendant nursing homes.

The West Virginia Supreme Court wrote these statements last week when issuing rulings in three cases against the use of forced arbitration clauses in nursing home contracts to keep victims from taking their case to a jury of their peers. Each case involved (1) a claim that a nursing home negligently caused the death of a resident; (2) a contract signed by a representative for the resident with a clause mandating that any disputes arising from negligent treatment would be submitted to arbitration; and (3) a defense by the nursing home that the claim should be submitted to arbitration, not to a jury at trial.

The court courageously disagreed, citing Article III, § 13 of the state Constitution, which preserves the right of the people to a jury trial with language identical to that of the Seventh Amendment. The Justices also criticized the "tendentious reasoning" used by the U.S. Supreme Court in its rulings to turn the Federal Arbitration Act into a substantive law that preempts most state law.

Congratulations to the attorneys who pleaded these cases and won the victory for their clients. Hopefully this decision will start a trend in other courtrooms and spark a change in opinions in Congress about forced nursing home arbitration contracts. A bill to ban such clauses has been gathering dust for several years and needs to be resuscitated.

Seven constitutional scholars; conservative Members of Congress such as Sen. Tom Coburn and Rep. Ron Paul; Tea Party Patriots co-founder Mark Meckler; and the national group of state legislators have already determined that a national medical malpractice ''tort reform'' bill is clearly unconstitutional. They agree that the Founding Fathers intended for the states to run their own tort law system, each in their own way, and the federal government has no business mandating a ''one-size-fits-all'' system. Dr. John Baker, a highly respected conservative scholar, discussed the constitutional issues today on the nationally syndicated "What's Up" radio program with host Terry Lowry (download podcast here).

Nevertheless, one powerful U.S. House committee chairman continues to push for H.R. 5, the so-called ''HEALTH Act,'' which would nationalize medical malpractice litigation. Rep. Fred Upton, chairman of the Energy & Commerce Committee, released a report this week on the committee's achievements during the first six months of this year. In the report, he enthusiastically supports H.R. 5 as a means of saving billions in federal spending.

Setting aside the dubious math used to arrive at that conclusion, it's amazing to me that a Republican in such a senior position would so clearly ignore the unconstitutionality of the bill. He might as well have proposed a federal sales tax on the sale of handguns and newspapers. Maybe someone in House Republican leadership can explain the meaning of the word "unconstitutional" to him. For the bill to pass the House now would be nothing but an exercise in raw, naked political power by the same medical associations who conspired to give us ObamaCare last year. Why would a Republican committee chairman back their special interest bill?

On March 10 and again on June 25, I reported on a bill numbered H.R. 966, the "Lawsuit Abuse Reduction Act," or LARA, part of the "tort reform" agenda. That bill would 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. The House Judiciary Committee acted on the bill today, voting on party lines to send it to the floor for full consideration by the House. But an amendment offered by Rep. Bobby Scott (D-VA) to exempt claims based "on the Constitution" from the tougher sanctions won unanimous approval. The amendment would ensure that civil rights claims, such as those brought to protect religious liberty under the First Amendment, gun rights under the Second Amendment, or equal protection claims under the 14th Amendment, can pursued without fear of tougher sanctions. In my earlier posts, I expressed concern over LARA's impact on litigation brought by social conservatives, so the amendment should ameliorate those concerns.

The amendment, however, creates a separate Rule 11 for those lawsuits, one completely different from those brought with some economic recovery at stake. I assume this will increase litigation over Rule 11 motions, as attorneys seek to avoid sanctions by claiming a nexus to the Constitution and judges use valuable court time to debate such motions. I'm not an expert in the Federal Rules of Civil Procedure, so I'm asking readers whether any other rule in the FRCP is so bifurcated between "Constitutional" and non-"Constitutional" claims. I will post the responses if you give me express permission.

Other issues with the bill remain as it heads to the floor. As I wrote in March, LARA is still "an unwise and unwarranted intrusion by the Legislative Branch into the independence of the Judicial Branch... 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." House Republicans shouldn't complain 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. The Judiciary obviously doesn't want to change Rule 11, since the Judicial Conference hasn't started any amendment proceeding.

There's no need to toughen these sanctions and create two standards for attorney sanctions when federal judges don't want to change current practice.

Yes, all three have one thing in common. Let's start with the latter two. At first glance, the average American might wonder - one's a criminal case over the murder of a child, the other a civil suit over spilled coffee; in the former, the defendant, Casey Anthony, was found not guilty by the jury of the most heinous of the six charges against her, while defendant McDonald's was found liable by the jury, which assessed damages in the millions of dollars. But the common thread is this: The "OUTRAGE!" expressed by average Americans to the decisions of the jury in each case sadly reflects, in large part, a lack of respect for and/or knowledge of the jury system, a jury system built into and protected by the Bill of Rights and beloved by our Founding Fathers. Tea Party Nation founder Judson Phillips, an attorney and expert on the Constitutionally protected jury system, said it best and simply this morning when commenting on the Casey Anthony verdict: "Trial by jury may be an imperfect system, but it is better than all of the alternatives." Amen to that! Hopefully more Americans will come to understand and appreciate the wisdom of the jury system.

Although Mr. Phillips commented solely on the use of the jury system in criminal cases, we know that the Founding Fathers didn't consider the right to a jury trial in civil cases to be subordinate to the right in criminal cases. My work here is all about educating readers on that critical point, especially given my opinion that the 7th Amendment right to a civil jury trial is the most unknown and endangered of any right protected by the Bill of Rights.

Which brings me back to John Adams. No Founding Father embodies the respect reserved for jury trials in civil AND criminal cases than John Adams. After all, it was John Adams who stepped up to represent the British soldiers who participated in the Boston Massacre in order to persuade a jury of Bostonians - ANGRY Bostonians who HATED the British - that the soldiers were not guilty of murder. You can read his famous closing argument on the website dedicated to the Boston Massacre. Near the end, note those oft-quoted words of Adams, "Facts are stubborn things," and finishing with perhaps the greatest tribute a trial attorney can pay to a jury: "To your candour and justice I submit the prisoners and their cause." And the jury acquitted the British captain and six of his soldiers, subjecting Adams to the "OUTRAGE!" of his fellow citizens for his persuasive abilities.

And we know that Adams cherished the right to a civil jury trial too. I wrote last August of his published letters defending the unalienable rights of Americans, one of which included the following:

"The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party. No man's property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws. What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!"

John Adams walked the walk, and Americans like Judson Phillips do so today. Instead of quickly condemning juries who adjudge accused murderers and unusual civil suits, we should look to the wisdom of the Founding Fathers, take a deep breath, and thank the Founders and God Almighty for the jury system for criminal and civil cases.

'And a trial by jury shall be preserved as usual in civil cases.'

Elbridge Gerry, one of the signers of the Declaration of Independence, proposed that addition to the draft of the U.S. Constitution near the end of the Constitutional Convention in September 1787. Charles Pinckney, delegate to the convention from South Carolina, joined him in the motion. The motion reflected the fervent belief by the two men that the Constitution would be incomplete and would not sufficiently protect the rights of individuals and of the states, in particular the right to a jury trial for civil cases. Gerry voted against the Constitution for that reason and was joined by George Mason and Edmund Randolph of Virginia. Although the motion was defeated that day, co-authors Gerry and Pinckney saw their motion included in the Bill of Rights introduced into the First Congress by James Madison and ratified by the states as the Seventh Amendment to the Constitution.

This quote is included in an excellent article, Charles Pinckney and the Seventh Amendment, written by Joel W. Collins, Jr., of the firm of Collins & Lacy, PC, for the Fall 2009 issue of Voir Dire, published by the American Board of Trial Advocates. The article also includes additional details on the development of the right to a jury trial for civil suits, and I highly recommend it.

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:"

And the Declaration was preceded by the first Virginia Constitution, enacted June 29, 1776, which also condemned King George III, "For depriving us of the benefits of trial by jury," and the Virginia Declaration of Rights enacted on June 12, 1776, in which Article XI states, "That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred."

As I posted when I opened this website, our Founding Fathers were crystal clear that Americans have an unalienable right to jury trials for civil suits.

HAPPY INDEPENDENCE DAY!!

What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights.

So says Sen. Tom Coburn, Republican from Oklahoma and a veteran doctor, in a new interview with Medscape, a pro-tort reform website. Thank God there are more clear-eyed Constitutional conservatives now in Congress like Sen. Coburn, who recognizes what the Founding Fathers were actually doing when they enacted the Commerce Clause and the Bill of Rights. The Commerce Clause in no way justifies the imposition of federal tort reform laws such as H.R. 5, the medical malpractice tort reform bill to federally limit civil suits against health care providers, drug and device companies, and insurance companies. He reiterates the point that I made here on May 6, that if health insurance isn't "commerce," then neither is health litigation. Sen. Coburn also recognizes that the so-called "state flexibility" section in H.R. 5 is a joke and doesn't protect states' rights at all, in contradiction to the 10th Amendment.

Sen. Coburn joins the following SEVEN Constitutional scholars in opposing H.R. 5 and the wholesale destruction of states' rights through sweeping federal tort reform laws:

Prof. John Baker, LSU Law School
Prof. Randy Barnett, Georgetown Law Center
Rob Natelson, Independence Institute
Walter Olson, Cato Institute
Ted Frank
Prof. Ilya Somin, George Mason Law School
Prof. Jonathan Adler, Case Western Reserve Law School

Sen. Coburn is joined by Tea Party Patriots co-founder Mark Meckler and real conservatives in Congress such as Reps. Ron Paul, John Duncan, Morgan Griffith, Lee Terry, and many others.

Sen. Coburn's vote for Constitutional limits on Congressional power is a breath of fresh air, and we should support him with calls and e-mails to our Congressmen and Senators.