The asbestos issue is important to veterans because although they comprise only 8% of the US population, they account for nearly 30% of all mesothelioma deaths nationally. If you served in the U.S. Navy before the mid-1970's, you were likely exposed to asbestos aboard a ship. During and after World War II, asbestos use in Navy ships and other armed forces applications greatly expanded as the asbestos manufacturing companies began producing more products and infrastructure for the U.S. Navy and the building of its ships. This caused hundreds of thousands of workers and sailors to be unknowingly exposed to dangerous asbestos dust in the cutting and manipulation of insulation products. As a result, many of those men and women contracted an asbestos-related disease decades later.
As early as the 1950's, the asbestos industry knew asbestos exposure was killing workers and their families and failed to issue warnings or proper protection. In 1994 Congress recognized the enormous damage caused by asbestos and enabled the creation of privately funded trusts, funded by the asbestos companies, for the benefit of asbestos victims now and into the future. But the asbestos industry continues to fight to minimize their liability, with the ultimate goal of avoiding accountability until the victim dies, leaving grieving families and taxpayers with astronomical medical bills, and decreasing compensation to victims.
In Congress and in state legislatures, the asbestos industry and those who generally want to limit our 7th Amendment rights are pushing bills to delay compensation or raise legal barriers to full payment. On Tuesday, the House Judiciary Committee approved the so-called "Furthering Asbestos Claim Transparency (FACT) Act of 2013," while in states such as Wisconsin, FACT Act-like bills are being enacted or considered. Veterans are waking up to the possibility that they might suffer as a result.
The FACT Act would do three things not currently required: 1) it would require the trusts to publicly disclose extensive, individual and personal claim information; 2) it would allow asbestos defendants to demand any additional information from the trusts at any time and for virtually any reason; and 3) it would apply retroactively to the initial creation of the trust, forcing the trusts to look back to every claim ever filed and paid. Under the bill, many victims could die before their case resolves.
The FACT Act violates federalism principles by overriding state tort law and state law governing the release of personally identifiable information, while hypocritically allowing defendants to maintain confidentiality. Veterans could face the public disclosure of their private work history, asbestos exposure information, the last four digits of of their Social Security numbers, and even the personal information of their children. They've done nothing to deserve their private information being splashed all over the Internet! Sadly, proposals by Reps. Bobby Scott and Hank Johnson to protect veterans' claims and their medical privacy from the FACT Act were rejected by the Republican majority. Rep. Ted Poe of Texas was the only Republican to vote with veterans by opposing the bill.
In Wisconsin, a bill similar to the FACT Act was introduced in the Wisconsin State Legislature due to pressure from asbestos companies. Wisconsin is home to a high number of asbestos-diseased vets; from 1999 to 2005, the state ranked 14th in the nation in the number of mesothelioma and asbestos-related deaths.
Wisconsin veterans' groups are up in arms about the bill. The state chapters of the Military Order of the Purple Heart, the Veterans of Foreign Wars and the American Legion all came out in strong opposition. Nevertheless, the bill continues to proceed towards enactment, with proposals to protect veterans defeated there.
The national headquarters of these organizations are aware of the FACT Act, but haven't yet weighed in publicly to warn Congress against delaying the right to compensation or compromising medical privacy. This Memorial Day, let's honor our veterans by calling the MOPH, VFW and American Legion to urge them to oppose these bills nationwide, and let's tell Congress to keep their hands off our veterans' injury claims and privacy.
]]>American businesses have an incentive to produce quality goods because they will be held liable by our civil justice system. Foreign companies, on the other hand, have no such incentive because it is often difficult or impossible to subject them to the jurisdiction of U.S. courts. These manufacturers are able to avoid accountability to U.S. consumers while continuing to line their pockets with profits and export billions of dollars worth of merchandise to all 50 states.
Foreign manufacturers should have to play by the same rules as American manufacturers and not be able to escape responsibility because they are beyond the reach of our judicial system. There's a new push by Congress to change the status quo and hold foreign manufacturers accountable.
The "Foreign Manufacturers Legal Accountability Act" was introduced today by Congressmen Matt Cartwright (D-PA) and Mike Turner (R-OH), with Rep. Walter Jones (R-NC) as an original cosponsor. This bill is similar to bills introduced in previous sessions, and I hope a bipartisan majority of Congressmen and Senators support it.
The bill would make it easier for an injured consumer to serve the foreign manufacturer with notice of pending claims, so the consumer can proceed with a lawsuit. Foreign manufacturers or producers of covered products would be required to register an agent, located in a state where the company does business, who would be able to accept service of process for civil and regulatory claims. By registering the agent, the foreign manufacturer or producer also consents to state and federal jurisdiction for civil and regulatory claims. Covered products include drugs, devices, cosmetics, biological products, consumer products, chemical substances, and pesticides manufactured or produced outside of the United States.
The bill is good for U.S. businesses and consumers. Our companies should not be forced to unfairly compete against foreign businesses that can easily skirt the law. As in the case of toxic drywall, U.S. businesses also end up shouldering monetary losses when they cannot hold foreign suppliers accountable for dangerous products. The bill would make it easier for U.S. consumers injured in the United States to hold foreign manufacturers accountable for the injuries they cause. Why should a consumer have to travel to China to serve the defendant when the defendant does business in the U.S. and has an agent-importer located here? Why should Chinese law apply to a U.S. consumer injured in their own home?
The "Foreign Manufacturers Legal Accountability Act" addresses those problems.km Call your Congressman and ask him to support the bill.
]]>One of the provisions in the VRA would entitle victims of crime "to restitution." That's great - I'm all for it - with no argument at all. But Committee Members should remember that the Founding Fathers already recognized that right by fashioning a civil justice system based in the God-given right to have civil claims heard before a local jury. The 7th Amendment was the only amendment in the Bill of Rights unanimously adopted by all of the original states. It reflects the centuries-old recognition of the right to civil jury trials in British law, back to the Magna Carta in 1215, and the Biblical recognition of that right in various texts in the Old Testament. The Founders described that right as "sacred" and "a valuable safeguard to liberty."
Many victims of crime have, over the decades, exercised that right to pursue the assets of the criminal after the prosecution is completed. The successful civil suit against O.J. Simpson by the family of Ronald Goldman, who was killed in the attack, comes to mind.
And American victims of terrorism have had the specific right, added to federal law in the 1990s, to pursue restitution against state sponsors of terrorism. I've assisted victims of the 9-11 attacks, Qaddafi s reign of terror, and Iran-sponsored terrorism to obtain a measure of justice through legislation and administrative action. Last year, Congress enacted a special section in an Iran sanctions act to enable several groups of American victims to enforce a judgment against Iran in federal court. Recently, the first judicial ruling after that bill's enactment was favorable to the victims, a promising development.
Members of Congress should remember that Founding Fathers didn't consider the right to restitution to be exclusive to victims of crime or of any other specific act. They created ONE civil justice system, grounded in the unalienable right to a civil jury trial, for civil claims of all types and all origins. Victims of medical malpractice and product liability have an equal right in the eyes of God to seek restitution as victims of crime and international terrorism, and Congress shouldn't seek to abridge those rights through "tort reform" or artificial caps on civil damages. Congress should spend its energy upholding 7th Amendment rights for all Americans in all circumstances.
]]>Having assisted American victims of terrorism for eight years in their quest to take terrorists' money, I'm pretty sure that what the victims of the Boston Marathon bombings most of all is The Answers and The Truth. To a person, terrorism victims have told me that they care more about finding the whole truth about the attacks that killed or injured their loved ones than obtaining compensation for the attacks. The Boston bombing victims deserve no less. They want to know what the feds at the CIA, FBI, DOJ and State Department knew about the Tsarnaev brothers and what they missed. They want to know to whom they might have confided in any mosque in Boston; why the FBI didn't follow up on the 2011 review of Tamerlan Tsarnaev; why they didn't recognize him immediately when pictures and videos of the bombing became available; and what the feds knew or missed about his trip to Russia last year, including who paid for it. They want to know if he was part of a larger group, with potential "sleeper" cells waiting to pounce elsewhere in the U.S.
Too many of us were dissatisfied into the "investigation" into the Benghazi attacks, especially the victims' families. The Obama Administration's lack of disclosure of the events surrounding the deaths of our diplomats and their security personnel stands in stark contrast to the 9-11 Commission's thorough and mostly open investigation of the events leading up to the attacks on September 11, 2001. It wasn't perfect, but it that is the standard we should set in the review of the Boston Marathon bombings. Nothing less will renew our sense of trust in the federal anti-terrorism effort, shaken after the Marathon bombings.
We can't have a Benghazi on American soil. Congress should subpoena every possible document, interview every official involved, and hold as many hearings as possible to forge a single, complete narrative of the brothers' radicalization, their training in explosives, and their plans to bomb the Marathon and possibly other targets.
Let the subpoenas fly and the hearings begin.
]]>All these experts and 10th Amendment advocates have opined that a federal medical liability limit is an excessive use of federal power and now has little chance of surviving scrutiny by the Supreme Court under its rulings on the Commerce Clause and the Necessary & Proper Clause in the Obamacare decision. Nevertheless, Republican House and Senate leaders forced a medical liability limit provision into their budget plans, and did so without committee debate.
A better name for any federal medical liability limit would be the "Dr. Gosnell & Abortion Butchers Civil Protection Act." Almost every such proposal would have the impact of protecting abortion butchers like Dr. Gosnell, now on trial for murder in Philadelphia, from full accountability before a local jury.
Medical malpractice suits brought by families against other abortion butchers, as well as against other dangerously incompetent doctors and medical professionals, could be severely limited in impact, and the Gosnells of America would be allowed to keep much of the "blood money," if federal limits are imposed. Most medical liability limit proposals would sharply limit non-economic and punitive damages, so butchers such as Gosnell wouldn't feel the full sting of a jury verdict on his assets. And they even protect doctors who commit intentional torts, such as sexual abuse! All this is lost on the politicians who ignorantly repeat whatever the medical lobbies put in front of them.
For John Boehner, Rob Portman and Paul Ryan, medical liability limits are an article of faith to beat trial lawyers over the head. Even though these Republicans are vocally protective of the right to life, they don't stop to think that liability limits are a blank check for butchers like Gosnell.
But I'm really surprised that Republican women in Congress, such as Reps. Blackburn and Ellmers, so thoughtlessly ignore the impact of federal liability limits on women's health. Didn't they read the horrific accounts of the deaths of the born babies and 41-year-old Karnamaya Mongar, who died at Gosnell's hands? Don't they realize the danger of their insensitivity? Why don't they see the value of the civil justice system that the Founders designed, grounded in the 7th Amendment right to a civil jury trial, as a means of punishing dangerously negligent doctors?
If Republican women politicians and their leaders want to avoid being accused of waging a "war on women," they should start by ensuring that deadly doctors, hospitals, nursing homes, and drugs and devices don't receive legal protection from civil liability in federal law.
]]>The Electronic Frontier Foundation recently released a laundry list of problems with the bill. Here are the highlights:
(1) The bill supposedly limits exposure to only "cyber threat information." But the definition of that term doesn't exclude personally identifiable information. Social Security numbers are "cyber threat information" in the wrong hands. Private emails are too - is that what you want your cable company to turn over to the Feds? If you tell your relatives that Obama is a socialist, will Comcast or Verizon turn it over to the FBI? You up for that?
(2) The bill doesn't define "cybersecurity systems" either. Companies can use a "cybersecurity system" to "identify or obtain" information about a potential threat, but the term isn't limited to security software or intrusion systems; the term "system" is never defined. No privacy protection there.
(3) CISPA encourages companies to conduct their own surveillance on their networks and turn over whatever they deem "cyber threat information" to the government, with a promise of total immunity from civil or criminal lawsuits. So it strips the utilities, internet and telecom companies of any accountability and allows them to create a private spying program. CISPA strips us of our constitutional right to hold those companies accountable for turning over our personal information, whether by design or error.
House GOP leaders went through this exercise last year, only to find The People standing in the way. But they haven't learned. They're about to let the same wild-and-crazy gun-control liberals, like Obama, Pelosi and Dianne Feinstein, effective control over our private data and emails. DiFi has her own CISPA ready to go. WHAT ARE BOEHNER AND CANTOR THINKING?
Tell your Congressman and Senator NO, TODAY, and that YOU will personally hold THEM accountable for messing with our internet and our privacy. Tell them to give up on this year's version of CISPA.
]]>As a result, courts have dismissed hundreds of cases of patients that have been injured by dangerous generic drugs, including cases involving generic Darvocet, Reglan, Phenergan, and Ambien, citing Mensing. Pharmaceutical companies, including those making generic drugs, get a free ride because they're not required to update the warning labels and/or disclose new findings of potential harm to the public.
The Court recognized that its ruling "makes little sense" in the context of its other preemption decisions; for instance, in a previous decision involving federal preemption of state suits over defective drugs, the Court stated:
State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA's premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation.
Wyeth v Levine, 555 U.S. 555 (2009), pp. 579-80
The Mensing ruling was another blow to the states' right to administer civil justice in an area where state authority had been upheld for decades. But it wasn't the first such decision by the Court. In Riegel v. Medtronic, Inc. (2008), the Court found that in certain circumstances, a person's ability to bring a medical-device claim under state law is preempted by federal law. The Court ruled that for only "Class III" medical devices approved by the FDA under the pre-market approval process, no state law cause of action would be allowed to go forward. That case resulted in the dismissal of hundreds of cases involving defective heart pacemakers and artificial joints. The Court recently heard case involving defective generic drugs, Mutual Pharmaceutical v. Bartlett, that will decide whether generic makers face any responsibility for the overall design of the drugs they produce.
Whether the Court continues to preempt state civil suits or not, we know that the FDA cannot guarantee the safety of generic drugs. Attorney Keith Jensen recently discussed the FDA's failure to protect our health, in an interview on the "What's Up" radio program in Houston, hosted by Terry Lowry. As Mr. Jensen explained, pharmaceutical companies send trucks filled with boxes of data to the FDA with a simple letter stating that their new drug is safe and should be approved for sale. The FDA, without its own labs, reviews the company's mountain of data but cannot conduct an independent verification. Without evidence to the contrary, the FDA rubber stamps the pharmaceutical's request for sale. You can download Segment One of the interview here, then Segment Two, and then Segment Three.
We need to protect the Founding Father's vision of a vibrant civil justice system, based in the 7th Amendment right to a jury trial for civil suits, to serve as a truly effective accountability mechanism.
This is an issue in which Congress should enact a law to restore our lost rights. Please tell your Congressman and Senator to level the playing field and restore states' rights and accountability for defective generics.
]]>1. It maintains the federal leviathan working to control our lives. FACTS: The Ryan budget won't result in the single closure of any sizable federal agency and explicitly avoids layoffs of federal workers. As Roll Call newspaper put it, "Ryan's budget eliminates the deficit in 2023 not because of large new spending cuts relative to his past budgets, but because he's keeping hundreds of billions of dollars a year of President Barack Obama's own budget policies in place." There's nothing "conservative" about using Obama's phony budgeting.
2. The Ryan budget also maintains the Obamacare and fiscal cliff taxes needed to fund Big Uncle Sam. Again, quoting Roll Call, "Ryan's budget also would not balance without the $600 billion-plus increase in taxes extracted by the president in the fiscal cliff deal." What's "conservative" about backing Obama's tax increase?
3. The result of the Ryan spending and tax decisions is that he sacrifices the conservative principle of reducing the role of the federal government for a goal of a balanced budget, which is a numbers exercise (albeit an important one). And that is exactly what happened in the Reagan budgets (I was there) and during the Gingrich era in the 1990s, when we achieved a budget surplus but didn't get Big Uncle Sam out of our lives. Is that what conservatives want?
4. The Ryan budget violates the 10th Amendment and restricts the 7th Amendment right to civil jury trials. It unconstitutionally crushes each state's right to maintain its own civil justice system, by mandating federal limits on damages available in healthcare-related lawsuits. The plan ignores the opinions of the most respected Republican-side and libertarian legal experts and officials who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court's Obamacare opinion. These experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states' right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.
5. The same caps do nothing to raise the quality of health care in the U.S., which is why Republican-side healthcare experts don't support federal caps on such lawsuits (e.g., Avik Roy, Jim Capretta and Tom Miller). A recent study by respected academics punctures five myths of medical malpractice, but these realities are ignored by Rep. Ryan and House leadership.
6. The combination of the continued federal presence in the regulatory agencies and the proposed civil immunity for the entire medical community, from doctors to insurance companies to nursing homes, make the Ryan budget a perfect vehicle for Crony Capitalism. Federal bureaucrats will feel free to preempt state laws and restrict individual freedom in all types of settings. There's no effective "STOP" sign on Uncle Sam in the Ryan budget.
Conservatives and Tea Partiers should oppose the Ryan budget. It doesn't promote the conservative vision of a reduced role for the federal government in our lives. It continues to "feed the beast." It infringes on states' and individual rights. It's not a conservative or Tea Party manifesto and should not excite or inspire any conservative, Tea Partier or libertarian. It doesn't project the Founding Fathers' vision for the nation or for a limited government. There's no reason to spill any political blood over it.
]]>"• Reform the medical liability system.
This budget also advances common-sense curbs on abusive and frivolous lawsuits. Medical lawsuits and excessive verdicts increase health-care costs and result in reduced access to care. When mistakes happen, patients have a right to fair representation and fair compensation. But the current tort litigation system too often serves the interests of lawyers while driving up costs. The budget supports several changes to laws governing medical liability, including limits on noneconomic and punitive damages."
The plan ignores the opinions of the most respected Republican-side and libertarian legal experts who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court's Obamacare opinion. Such a measure crushes states' and individual rights and is an invalid exercise of the Commerce Clause.
The panoply of experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states' right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.
And federal caps on medmal damages are not supported by leading Republican-side healthcare experts. Avik Roy, Jim Capretta and Tom Miller don't include it in any of their recent proposals. They know federal caps on medmal lawsuits do nothing to help improve the quality of medical care.
The Ryan budget is nothing more than a sop to doctors, insurance companies, drug and device companies, and nursing homes, ALL of whom supported the enactment of Obamacare and approval by the Supreme Court. The lust for campaign dollars ignores the Constitution and realities in the healthcare marketplace.
Republicans should reject Ryan's Crony Politics and vote with the Founding Fathers.
]]>Under the nose of the vast majority of Americans, Crony Capitalists have been moving to shut out millions of us from exercising our 7th Amendment rights over bad products or services, based on one rarely read paragraph in consumer contracts. That paragraph, in everything from cell phone and car contracts to employment agreements, requires us to submit to binding arbitration, and to not file a lawsuit, as a condition of even buying the product or service. Forced arbitration clauses eliminate the ability to hold wrongdoers accountable, even in the most egregious cases involving the abuse of children and the elderly, intentional wrongdoing, and gross violations of law.
These clauses force us to give up our God-given, constitutionally protected right to go to court in favor of being relegated into a system of secret arbitration, where the arbitrators and the rules are chosen by the very company against whom the individual has a grievance. There are no due process standards, no guarantees that the applicable laws will be upheld, and no public records of the proceedings.
Let me stress that there's nothing wrong with voluntary arbitration in which both sides have an equal chance before an impartial arbitrator in an open process. That's not what happens in the current arbitration environment. The little guy has almost no shot whatsoever. And the mainstream press never touches the subject.
It's been trending this way for years, but Crony Capitalists have received a huge boost from the supposedly-conservative Supreme Court in the quest to shut courthouse doors over forced arbitration clauses. The Court's recent decisions have turned an almost-80-year-old law, the Federal Arbitration Act, into a giant club with which to crush states' and individual rights. Two Texas state judges summarized the state of forced arbitration and recently wrote the following:
Our Seventh Amendment right to a jury trial is vanishing before our very eyes thanks in large part to an increased reliance upon alternate dispute resolution and mandatory arbitration. While a sound argument can be made for the utility of arbitration in arms-length commercial transactions, the consequences are particularly dire in situations involving consumers and employment consequences... AT&T and Rent-A-Center pushed the FAA's scope to new limits. Courts are now unlikely to find contracts with arbitration provisions unconscionable no matter what state law provides. It is obvious that the application of the FAA has expanded beyond its drafters' intent and in the face of apparent deficiencies.
Last week, a federal securities regulator gave preliminary approval to a plan by the discount brokerage firm Charles Schwab to require all 8+ million accountholders to agree to forced arbitration, even if Schwab violates securities law. POOF! There goes the constitutional rights for over 8 million people. Betcha every stock brokerage firm copies Schwab, basically enabling Wall Street, which already liquidated billions in pension accounts, to throw ethics out the window again and take investors into another financial crash without penalty.
Tomorrow we'll see if the Supreme Court will take forced arbitration another step further and force small businesses with American Express accounts to submit to forced arbitration procedures designed and run by AMEX. If the Supremes are consistent, every small business with a Gold Card will know how individuals feel when the phone company tells us to go to arbitration or enjoy our crummy phone.
WHAT'S NEXT?! Will we see a sign on the grocery store door and on receipts, telling us that the purchase of food there constitutes an agreement to not sue it for spoiled, poorly stored food that makes us sick? Will we see a little paragraph on our car mechanic's bill, telling us that we can't sue for a dangerously negligent care repair, even if we're killed?
When will Congress start taking this seriously and change the Federal Arbitration Act so we can exercise our rights in state courts, as the Founders said we should?
UPDATE, March 4: I Discussed this issue on the What's Up radio program, hosted by Terry Lowry and broadcast on 100.7 FM KKHT, the Word Live stream at www.KKHT.com in Houston, TX, and on KBXD-AM 1480 in Dallas. You can download and listen to the interview in three segments:
Segment One
Segment Two
Segment Three
That reduction begs the following questions: Why don't we trust the same jurors who hear all of the facts, listen to all of the testimony, and determine legal liability to determine the amount of damages? What makes a judge, or any small group of judges, so special that they should have the power to override a jury's decision? Why do we allow state legislators to arbitrarily set a rigid cap on non-economic damages? Can't state law at least enable a jury to "bust the cap" as it sees fit in unique circumstances? Where in the Founding Documents of the United States is there any support by the Founding Fathers for the idea of overriding a jury's decision on damages through an inflexible state statute or an arbitrary decision by a judge?
The jury in the Virginia Tech shootings case found that the university's senior officials were negligent in not warning students that a homicidal maniac had already killed students and was on the loose. The jury consciously decided that the university officials were so grossly negligent that the they had to award millions of dollars in damages to the families. That decision by twelve honorable Virginians should have been honored in state law and by state judges.
I hope the Virginia Governor and General Assembly will consider that their fellow Virginians Thomas Jefferson, James Madison and George Mason honored and protected the jury's right to determine civil liability and never, ever, proposed limiting a jury's discretion to award damages. It was Madison who described trial by jury in civil cases "as essential to secure the liberty of the people as any one of the pre-existent rights of nature" and who protected it in the Seventh Amendment. Mason refused to sign the Constitution because of the absence of a Bill of Rights, and he specifically demanded trial by jury in civil cases. To arbitrarily cap a jury's award, without even the ability of a single jury to override a statutory cap in special circumstances, ignores the unique place granted to civil jury trials by Founders such as Jefferson, Madison and Mason and dilutes the power of a jury to hold a defendant fully liable for gross negligence.
]]>Almost two years ago, I researched all of his speeches and writings available on the internet to determine whether he would be considered a "constitutional conservative" by today's standards, meaning fidelity to the Bill of Rights, or whether he would stand with today's "Crony Capitalists" who lobby in Washington for special protection in federal law through the preemption of state law or, worse yet, immunity through federal tort reform. Too many politicians who pass themselves off as constitutional conservatives ditch the 7th Amendment right to civil jury trials and side with Crony Capitalists to protect companies they represent.
I then wrote a special post titled, "What Ronald Reagan REALLY Said About Tort Reform," which I re-posted in January of last year. The conclusion of my research is crystal clear.
Ronald Reagan was never for federal tort reform. He never proposed a federal tort reform bill in his State of the Union speeches, budget proposals, nomination acceptance speeches, or major addresses on the economy.
Reagan's silence in the issue is due primarily to his strong belief in the rights of the states and individual, as protected in the Bill of Rights. Reagan understood, better than almost any political figure of our times, the limitations on central power built into the Constitution and fortified by the Bill of Rights. He highlighted his fidelity to federalism in his first Inaugural Address in 1981:
All of us need to be reminded that the federal government did not create the states; the states created the federal government.
And before that, in his 1979 speech announcing his candidacy:
The federal government has taken on functions it was never intended to perform and which it does not perform well. There should be a planned, orderly transfer of such functions to states and communities and a transfer with them of the sources of taxation to pay for them.
That sounds like a constitutional conservative, not a Crony Capitalist. And I remember that Reagan was the presidential candidate for "Main Street Republicans," including the social conservative movement, while John Connolly of Texas was the guy backed by the "Wall Street Republicans."
In the decades in which he addressed public policy issues as a commentator, Governor and President, he addressed the issue of federal tort reform apparently only once, near the end of his Presidency. In remarks he gave in Washington in April 1986, he remained true to his roots, saying, "To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right." That's a man who knows that Uncle Sam's authority is limited to the powers enumerated in the Constitution. Unlike many on the left and right today, Reagan would have had no inconsistency between his opinion on Obamacare and his thoughts on federal tort reform. He would have found both unconstitutional.
Reagan would feel right at home with the Tea Party base of the Republican Party that recognizes and honors the 7th Amendment right to a jury trial for civil suits. He would have stood with legal scholars Randy Barnett and Rob Natelson; Senators Tom Coburn and Mike Lee; and Virginia Attorney General Ken Cuccinelli against the takeover of state tort law by the feds. I have to believe that anyone proposing sweeping preemption of the states' rights to protect citizens and manage courtrooms would've drawn severe skepticism or outright opposition by President Reagan.
So thank you, Ronald Reagan, for your vigorous defense of personal and states' rights, and for so much more.
]]>Some of the "hard facts" about medical malpractice are addressed in a new study published in the January 2013 issue of "CHEST," the official journal of the American College of Chest Physicians." Titled, "Five Myths of Medical Malpractice," the study lists five famous myths, then debunks them with real facts. The study is summarized on the CHEST website, but is copyrighted and thus available in full only to subscribers. Here is the authors' summary open to all:
"We identify five myths of medical malpractice that have wide currency in medical circles. The myths are as follows: (1) Malpractice crises are caused by spikes in medical malpractice litigation (ie, sudden rises in payouts and claim frequency), (2) the tort system delivers "jackpot justice," (3) physicians are one malpractice verdict away from bankruptcy, (4) physicians move to states that adopt damages caps, and (5) tort reform will lower health-care spending dramatically. We test each assertion against the available empirical evidence on the subject and conclude by identifying various nonmythical problems with the medical malpractice system."
The authors are David A. Hyman, MD, JD, and Charles Silver, JD, two expert researchers who have already punched holes in the major claims made about the benefits to Texans from state-imposed caps on damages in medical malpractice lawsuits. I've written extensively about their study of Texas medmal caps, which they cite in the new study.
For policy purposes, I'll note here simply that the last paragraph of the new study reports that mandated caps on medmal damages "do little to improve the malpractice system... they do not make health-care safer, reduce health-care spending, compensate those who are negligently injured, or make the liability system work better." Hyman and Silver say that the best reforms in medicine are "patient safety initiatives that reduce the frequency and severity of medical mistakes."
That's the type of fact-based conclusion that should be easy to swallow. If you want to limit medmal lawsuits, end the medmal!
]]>Judson Phillips, Tea Party Nation, January 12
Judson Phillips, the Founder of the Tea Party Nation group, knows and defends each amendment in the Bill of Rights. He knows that the Founding Fathers based the civil justice system on an "inviolate" right to a jury trial for civil suits in order to place real power in the hands of local jurors, not the sovereign. The Founders created one civil justice system and protected civil jury trials under the 7th Amendment for all causes and cases, from the protection of gun rights (2nd Amendment) and religious liberty (1st Amendment) and property rights from an activist central government, to the defense of economic rights exploited in the free market, through lawsuits for defective products and medical malpractice.
Real conservatives need to defend each and every God-given right enumerated in the Bill of Rights, and fight to maintain the limits on central power inherent in the Constitution. The Supreme Court ruling in the Obamacare decision made it clear that the Commerce Clause doesn't authorize federal encroachment into local health care decisions, a ruling clearly applicable to most civil justice issues and tort law.
I discussed these issues recently on the syndicated What's Up radio show, hosted by Christian conservative Terry Lowry and broadcast on various radio stations around the country. You can download the podcast of my interview from the What's Up website at this link (mp3 file). I noted that the Bill of Rights is not a menu that we can just pick and choose from, like we do at a restaurant. Liberals who love civil jury trials for their causes need to protect our right to bear arms, and conservatives need to protect the right to civil jury trials from crony capitalists who would abridge our right to a civil jury trial through "tort reform." I added that neither God nor the Founding Fathers makes anyone in the healthcare industry so special as to be worthy of immunity from civil suits and accountability for their negligence.
]]>Liberals, especially those dedicated to the cause of civil justice, should be careful what they wish for in the next four years. An Uncle Sam unleashed from the limits on centralized power designed into the Constitution and Bill of Rights could hinder or even crush the individual right to have civil suits heard before a local jury and the right of state governments to enforce local laws benefitting the consumer. In the hands of Big Government Liberals and Crony Capitalists working behind closed doors in smoke-filled rooms, phrases of Obama's speech such as "collective action" and "common effort" could result in budget "compromises" and "Grand Bargains" that leave us with ugly surprises, such as federal caps on damages in medical malpractice lawsuits filed in state and county courts; preemption of state consumer protection laws; and limits on the authority of state Attorneys General. Is that what liberals signed up for when they cheered President Obama?
Civil justice activists of all stripes should heed and cite the majority decision by the Supreme Court in the Obamacare ruling. Thankfully, the Court expressed the need for the Executive Branch and Congress to recognize and follow constitutional limits on their authority under the Commerce Clause and the Necessary and Proper Clause. Constitutional experts whose theories were adopted by the majority, such as Randy Barnett and Rob Natelson, have already made it clear that the Roberts decision imposed new limits on the unbridled ambition to override state governments and individual rights. Randy Barnett promises to lead any legal challenge to an enacted federal cap on medmal damages, and both experts predict such a law would be struck down by the current Court. As long as that opinion isn't overruled through the appointment of justices who believe in an unlimited Commerce Clause, as promoted in Justice Ginsberg's minority opinion, the Founding Fathers' vision of a civil justice system dominated by local juries, and not bureaucrats in Washington, will remain alive.
Ironic, isn't it? Civil justice advocates on the left need libertarians and constitutional conservative thinkers such as Randy Barnett and Rob Natelson; conservative Republicans such as Ted Poe, Louis Gohmert, Tom Coburn, Mike Lee and Ken Cuccinelli; and wise Tea Party activists such as Judson Phillips, to keep the promise of equality under law. Let's hope civil justice liberals realize it.
]]>