The 7th Amendment Advocate

The chairman of the top health subcommittee in the House, Rep. Joe Pitts, announced this week that the House GOP would offer a "replace Obamacare" bill that be a "free-market alternative." But he added that the proposal would mandate a federal cap on awards in medical malpractice lawsuits filed anywhere in the U.S. There's nothing "free-market" about using federal law to give orders to juries and judges sitting in state courtrooms. The Founding Fathers trusted local juries to make the decisions on claims before them, including the level of damages. That's why so many Republican Members of Congress, conservative legal scholars, and states' rights advocates have criticized legislative proposals to federally mandate awards in medmal lawsuits, tell local judges which cases they can and cannot handle, and impose federal wage controls on attorneys. Did Rep. Pitts pay any attention when Ken Cuccinelli, Attorney General of Virginia, promised that he would sue to stop such a law more quickly than he sued to stop Obamacare? Or when Randy Barnett, co-counsel for the NFIB in the lawsuit to kill Obamacare, wrote that tort law belongs exclusively to the states and called out Republicans like Pitts as "fair-weather federalists?" Or when his fellow Republicans in Congress such as Senators Tom Coburn and Mike Lee, and Reps. Lee Terry, Morgan Griffith, Ted Poe and Louis Gohmert stood up for the Founding Fathers' vision of liberty, trusted local juries and opposed federal medmal limits? Or when Rob Natelson of the conservative Independence Institute documented the writings of the Founding Fathers, in which they clearly insisted on protecting the right to a civil jury trial in state courts from federal interference? Or when the Cato Institute reported that medmal caps hurt consumers, or when the non-partisan National Conference of State Legislators objected to federal medmal limits in a letter to Congress? What do the 7th Amendment and 10th Amendment mean to Rep. Pitts?

Why doesn't he realize that his beloved federal cap on medmal lawsuit awards shares the same basis in constitutional theory as the Obamacare he wishes so hard to replace? Both are fundamentally based on the expansion of the Commerce Clause initiated after the Supreme Court's decision in Wickard v. Filburn. The Obama Justice Department cited that case in its briefs in Obamacare cases (page 18), and the American Tort Reform Association cited it in a paper supporting federal medmal limits (page 2). Or does Rep. Pitts recognize only those limits on federal power with which he agrees?

And why - WHY - does Rep. Pitts want to reward the pro-Obamacare and pro-abortion AMA and their buddies among medical groups, who shoved the individual mandate down our throats? Why does he want to give them partial civil immunity from deadly medical errors when they're pursuing the federal takeover of all health care?

Maybe most importantly, is Rep. Pitts speaking just for himself or for most or all of the House GOP? If he took off on his own to propose an unconstitutional and hypocritical bill, then it's easy to predict the bill won't enjoy even the support of too many Republicans. Let's hope so.

In various posts since the inception of this website, I've addressed the relevance of the right to have a civil suit heard before a jury in the context of individual issues of importance to Tea Partiers, Constitutional conservatives, and Republicans. This centuries-old right, recognized since the Magna Carta in 1215, has been under attack for decades and is now, I assert, the least known and most endangered of the ten Constitutional amendments in the Bill of Rights. Here's a simple summary of reasons why those groups, my ideological brethren (and in the case of Republicans, my sometime employer), should back an unhindered right to a jury trial for civil suits:

1. CIVIL SUITS CAN KILL OBAMACARE: The Republicans and Tea Partiers are rightly cheering on those state Attorneys General who have sued in federal court to declare ObamaCare unconstitutional. But it's rather disingenous to trash trial lawyers and then turn around and enthusiatically back the anti-ObamaCare lawsuits filed by a state's top official trial lawyer. At least it guarantees that we won't hear anyone of either party refer to the state AG suits as "junk lawsuits" and trash the AGs as "power-greedy trial lawyers."

2. CIVIL SUITS PROTECT THE UNBORN & WOMENS' HEALTH: I posted in August 2010 that trial lawyers have assisted the pro-life and womens' health causes for decades, by pursuing dangerous abortifacients, and unsafe drugs, and defective medical devices, all approved by a FDA asleep at the switch. And civil suits will be the last line of defense for champions of the unborn against the next wave of abortifacient techonology.

3. CIVIL SUITS PROTECT RELIGIOUS LIBERTY, GUN RIGHTS & PROPERTY OWNERS: "The 7th Amendment is the "sword and shield" enabling us to defend our religious liberty against government interference and intolerant institutions, e.g., pompous and overbearing university administrators. The Alliance Defense Fund successfully reversed attempts at university firings in the Howell and Sheldon cases by first suing the respective universities, and ADF prevents many other illegal actions just by threatening a suit. I didn't see anyone cracking on them as "sharks" and decrying their filings as "junk lawsuits." And of course, it took two civil lawsuits, filed by Americans exercising their 7th Amendment rights, to finally ensure that the correct, Constitutionally conservative view of the Second Amendment is the law of the land. Meanwhile, local governments try to use eminent domain often to take over private property - what would happen if their actions were impervious to legal challenge?

4. CIVIL SUITS PUNISH TERRORIST FINANCIERS: As I posted in June 2010, the 7th Amendment has been an important tool for the pursuit of terrorist financing, and civil lawsuits have resulted in some important judgments. The family of David Boim, an American killed by Hamas terrorists in Israel, successfully won a $156 million judgment against the Dallas-based Holy Land Foundation for its role as the biggest Hamas fundraiser in the U.S. And terrorism victims' attorneys from the Motley Rice law firm (one of my consulting clients), who are pursuing the Arab Bank in a civil suit for its alleged role as a conduit for terrorist funds, were able to access information gathered by Israeli intelligence for presentation when the case comes before a jury, hopefully soon. A former official of the NSC under Presidents Clinton and Bush testifed to Congress that, "civil litigation can substantially enhance the financial consequences that such entities face" (referring specifically to terrorist financiers).

5. THE 7TH AMENDMENT REPRESENTS A MAJOR DIFFERENCE BETWEEN CONSTITUTIONAL LAW AND ISLAMIC SHARIAH LAW: As I posted in August 2010, there are never any juries under Islamic shariah law for any case, civil or criminal - 800 years of American constitutional and Western jurisprudence go down the tubes, and a local imam picks the winner. The results are not just primitive, but barbarous, especially for women.

6. LIMITING CIVIL JUSTICE EMPOWERS JUDGES, BUREAUCRATS & "RULING CLASS," AND DEGRADES LOCAL CONTROL: We already see a chasm between the ruling class and the rest of the country along numerous political and social fault lines. Federally imposed limits on the civil justice process, such as the preemption of state statutory and common law for certain claims or restrictions in federal civil pleading standards, only cede more power to the judiciary and federal bureaucrats. Putting complete control over certain products or services (e.g., implantable medical devices or financial services) in the hands of federal bureaucrats (the FDA or Treasury, respectively), with total immunity for the companies involved, is simply not the system of justice that the Founding Fathers intended to build. To reiterate what another conservative said, "The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community - that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors... without the necessity of yet another costly and intrusive governmental bureaucracy..."

7. MOST IMPORTANTLY: BECAUSE THE FOUNDING FATHERS SAID IT'S A PRIORITY FOR ALL AMERICANS: There is no question that the Founding Fathers - from Jefferson and Madison and Hamilton, to John Adams, to George Mason, all explicitly said that citizens have the right to have their claims against their neighbors heard by a jury of their peers. It's mentioned in the Declaration of Indepedence and was protected in the first Virginia Declaration of Rights.

Promoting the 7th Amendment is the "right" thing to do to avoid being a political hypocrite of the type that Tea Partiers want to remove from power. Republicans and Tea Partiers uphold the 1st Amendment in the face of a biased and inaccurate media elite, and we defend the 2d Amendment in the face of serial shooters. We should protect and promote the 7th Amendment at all times as we do all other Amendments in the Bill of Rights.

Lawmakers who voted last year for an unconstitutional bill to crush states' and individual rights, by sharply limiting medical malpractice lawsuits, did a 180-degree turn on Tuesday, approving a federal bill to enable lawsuits against abusive eminent domain actions by local governments.

The House Judiciary Committee voted to approve H.R. 1433, titled The Private Property Rights Protection Act. Co-sponsored by a bipartisan group of Representatives including many Republicans the bill is aimed at stopping municipalities from condemning private property for private land development. The bill was inspired in part by the case of a group of homeowners in Long Beach, New Jersey, who successfully fought the city's efforts to take their homes and allow developers to make millions building upscale condos. Section 4 of the bill creates a private right of action to fight local eminent domain actions.

It's too bad the committee Republicans aren't as committed to protecing our lives from the impact of deadly medical errors by negligent health care personnel. Many of the Republicans voting for H.R. 1433 also voted last year to crush most medical malpractice lawsuits, as provided for in H.R. 5. That bill imposes caps on noneconomic damages, which would eliminate an incentive for lawsuits filed by the elderly and infirm. That bill would tell states how to manage their courtrooms and mandate a wage scale for the attoneys filing the cases, the only federally imposed wage scale approved by any set of Republicans.

It's ridiculously inconsistent for the Republican co-sponsors of H.R. 1433 to also co-sponsor H.R. 5. The two bills couldn't be more contradictory in intent, spirit, and basis in American Constitutional law. House Judciary Republicans should think twice before placing a higher value on property rights than on human life.

I posted the following eleven months ago to prove that Ronald Reagan never believed that the federal government should run state civil justice systems through federal tort reform or caps on damages awarded in state courts. With President Obama poised to deliver another State of the Union and the Republican Presidential race raging at full tilt, I thought it would be instructive to repost what I wrote in February 2011.
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During the recent 100th anniversary of the birth of Ronald Reagan, we read many tributes to him and re-read many of his greatest speeches. I worked for the 1980 Reagan campaign during law school, was a political appointee in the Commerce Department during the Reagan Administration, and my wife worked for the President in the West Wing, so I joined in all the attention paid to my favorite President.

I thought it was time to go back and research President Reagan's personal stance on federal tort reform. I knew a number of senior officials in the Reagan Administration who were for some federal interference with the right to a jury trial for civil suits and states' rights, notably then-Commerce Secretary Malcolm Baldrige, for whom it became a personal crusade. But when reviewing President Reagan's major speeches, from before the 1980 election to the end of his Presidency in 1989, I found the following:

1. Ronald Reagan never proposed any tort reform measure during any of his eight State of the Union speeches, and never criticized trial lawyers in them either. I've searched every word of his SOTUs. It's a strange fact that President Obama proposed more tort reform in this year's SOTU than Ronald Reagan did in eight SOTUs (I wonder if Republicans are comfortable with that).

2. Reagan didn't criticize trial lawyers or propose tort reform in his major address to Congress on April 28, 1981, in which he proposed his economic plan. This was his first speech since the assassination attempt on his life, and it set up the entire Reagan Revolution.

3. Reagan didn't criticize trial lawyers or propose tort reform in either of his Inaugural Addresses in 1981 and 1985. Neither did he in either of his speeches accepting the Republican nomination for President in 1980 and 1984.

4. I can find no mention of this topic in any of his major speeches prior to his election: not in his famous "Time For Choosing" speech in 1964; not in his speech to the first CPAC conference in 1974; not in a speech at Hillsdale College in 1977 titled, "Whatever Happened to Free Enterprise" - none of them. It's obvious that Ronald Reagan wasn't interested in limiting civil suits.

In 1986, President Reagan gave a speech at the Chamber of Commerce, in which he backed the findings of a "Tort Reform Working Group" (TRWG) inside the Administration. To backtrack: The Reagan White House created a number of "Working Groups" to address a variety of topics. For instance, I worked on a "Consulting Services Working Group" that changed the procurement of outside consultants and saved the Commerce Department several million dollars. The TRWG proposed a group of sweeping tort reform proposals, many of which are also included in H.R. 5, the bill reported last week by the House Judiciary Committee to impose federal limits on health care lawsuits.

Here's what Reagan said about the TRWG proposals in his 1986 speech, and note the emphasis on protecting states' rights:

Earlier this year I endorsed the report of my Domestic Policy Council's Tort Policy Working Group. This report contains a number of recommendations, recommendations that include fixed-dollar limitations for certain kinds of awards and the establishment of assurances that liability judgments go to those actually wronged or injured and not to the lining of their attorney's pockets. Now, one of the report's most important recommendations urged our administration to submit reform legislation to the Congress.

This legislation, carefully drafted, has now been introduced in the Congress by Senator Robert Kasten and Congressman Hamilton Fish. It restores the fault standard, which requires that actual fault or wrongdoing must be established in most cases before liability can be assessed. It limits pain-and-suffering and punitive damage awards, awards the amount contingency-fee lawyers could earn, and restricts the joint and several liability doctrine that can force a single defendant to pay all damages even if he is only partly to blame. 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. Many of the Tort Policy Working Group recommendations, for example, would have to be implemented at the State level to be fully effective. This administration's bill represents a much-needed overhaul of Federal laws governing interstate commerce -- one of the fields of authority the Federal Government is specifically granted by the Constitution -- and sets an example of common sense for the rest of the Nation to follow.

To my knowledge, and with the limitations that come with Internet research, this is the only speech in Ronald Reagan's long political career that comes close to proposing specific federal tort reform measures. And he recognized that states are the proper venue for the debate over tort reform, under "our Federal system of government," not the federal government. And he said it ONCE. He didn't follow up that speech with any other, not at the 1987 CPAC conference, not at the 1988 Republican convention, nowhere. You can do your own research and try to prove me wrong (I suggest you start at this website and at this website, where I found links to every speech cited in this post).

Anyone asserting that "Ronald Reagan was for tort reform" is mistating the Reagan record. It wasn't a priority for him, he didn't see civil litigation as a major problem, and it appears that he gave only one speech on it. That's certainly no basis for sweeping away states' rights in a new federal tort reform law.

On Thursday, the Arkansas Supreme Court voiced its support for the unalienable right to a civil jury trial by striking down a section of the state tort reform law. In the medical malpractice case of Teresa Broussard v. St. Edward Mercy Medical Center, the court ruled that sections of the law establishing standards for medical witness testimony were an unconstitutional infringement on the court's authority to decide witness qualifications. Chief Justice Jim Hanna upheld the court's right to determine the constitutionality of a state medical malpractice law and protected the court's sole authority to determine witness qualifications. He also reiterated a section of Arkansas law stipulating that the trial court "always has the inherent authority to secure the fair trial rights of litigants before it."

It wasn't the first time the court voided part of the state "Civil Justice Reform Act of 2003" and protected the rights of plaintiffs. Late last year, the court ruled that the section of that law capping punitive damages was unconstitutional, and in 2009, ruled that sections of the law limiting evidence of medical costs and allowing defendants to reduce their liability by naming "non-parties at fault" were unconstitutional for the same reason.

Let's hope other state supreme courts follow the Arkansas court's lead in protecting the right to a civil jury trial, and then take it a step further by striking down all onerous limitations on the right to a jury trial for civil suits.

In August, I asked here whether we would see Presidential candidate Rick Perry as the hardcore states' rights advocate, or Rick Perry the hardcore advocate of limiting the 7th Amendment right to a civil jury trial through limitations on plaintiffs' rights. He couldn't logically be both, since federal tort reform is completely incompatible with the concept of states' rights under the Constitution and Tenth Amendment. But Perry tried to be both, with no success. Perry suffered from the same malady as Michelle Bachmann, who falsely promoted herself as a "Constitutional conservative" while proposing federal medical malpractice laws (which would benefit the medical device industry located in her district). Republican primary voters were smart enough to see the blatant inconsistencies of the Perry and Bachmann campaigns, simultaneously calling to protect states' rights while they urge closing state courtroom doors under federal law. To his credit, Gov. Perry seemed to back off of federal tort reform in the fall and winter; it wasn't included in his "Cut, Balance and Grow" economic plan, and he stopped mentioning it in debates.

Gov. Perry ended his campaign today by endorsing Newt Gingrich. It's time to ask the same question about Newt Gingrich, still one of the frontrunners for the GOP nomination. Will we see a states' rights champion or an advocate for closing courtrooms and crushing constitutional rights?

I see Gingrich as evolving in his position during the past year or two. The "Old Newt" was a hardcore tort reformer with no respect for the right to a civil jury trial or states' rights. "Old Newt" developed a "Contract With America" in 1994 which propelled Republicans into a House majority and Gingrich into the Speaker's chair. It was blatantly pro-federal tort reform and didn't protect state authority for any purpose whatsoever. And an early version of a new "Contract," posted in early 2010 on the conservative Newsmax website, included a call for "Litigation Reform." But Gingrich has championed his support for states' rights in recent years, most notably in the books such as "Fed Up" (ironically co-authored with Rick Perry). As his Presidential campaign revived, he proposed enforcing the 10th Amendment "to return power back home" to the states, as part of the new "Contract With America."

So, you might ask, where is Newt now on this issue? Interestingly, Gingrich hasn't mentioned federal tort reform at all in the Presidential debates. When Virginia Attorney General Ken Cuccinelli called out Bachmann over her disrespect for state civil justice systems, Gingrich didn't respond either way. Although his campaign website proposes in one sentence to "Stop junk lawsuits that drive up the cost of medicine with medical malpractice reform," I'm not aware of any forum in which he's proposed it. When Rick Santorum, an unrepentant non-states'-righter, slammed Ron Paul over Paul's principled criticism of a national tort law, once again Gingrich didn't take the bait and didn't jump in on either side. It's fair to say that with the exception of that one sentence, Gingrich can claim that he's not for federal tort reform. Does he stand by that sentence or was it just an addition by a campaign staffer to make some contributors happy? If reports on the Internet about Gingrich and Perry building a pro-10th Amendment platform are true, we'll have a real means of judging Gingrich's fidelity to constitutional principle.

Will he recognize that the Founding Fathers unreservedly left authority over tort law out of the hands of the national government when they drafted the Constitution and Bill of Rights? Does he agree with conservatives such as VA AG Ken Cuccinelli, Sens. Tom Coburn and Mike Lee, Tea Party Nation founder Judson Phillips, Tea Party Patriots leader Mark Meckler, and top anti-Obamacare legal experts such as Randy Barnett and Walter Olson, all of whom said last year that federal tort reform is an unconstitutional abridgment of states' rights and that tort law isn't an enumerated power for Uncle Sam under the Constitution? Will he see the folly of rewarding the AMA and their associated medical groups, who want to use an unlimited Commerce Clause to justify national healthcare as well as special immunity from liability for harmful medical errors? Does he now realize that trial lawyers and civil suits had nothing to do with the Wall Street crash, the housing bubble and its collapse, the BP oilspill, and that those actors in those types of scandals need to be held accountable before local juries as the Founders intended?

Let's hope we see the "New Newt" standing for open courtrooms and state sovereignty, not the "Old Newt" who sought unconstitutional legal protection for selected sections of American business.

That was how GOP Presidential candidate Ron Paul described the impact of federal tort reform law, in the face of the Founding Fathers' clear mandate to protect each state's authority over its civil justice system. He was discussing the need to protect states' rights in all circumstances during the Fox News/WSJ Presidential debate in South Carolina. Rick Santorum defended his support for a nationwide ban on lawsuits against gun manfacturers, and attacked Ron Paul's vote against that ban. Ron Paul stood on the high ground of the Constitution and the Tenth Amendment and never relinquished it. Here is the full exchange, copied from the Fox News Insider website:

SANTORUM: I've been a strong -- again, lifetime A-plus record with the NRA, worked with them. They came to me repeatedly when I was in the Senate to help them and -- and -- and sponsor legislation and work toward making sure in ensuring gun rights. Contrast that with Congressman Paul. And one of the most important things that we did in -- in -- in protecting the Second Amendment -- and I provided a leadership role on it -- was the gun manufacturers' liability bill. There were a lot of lawyers out there who were trying to sue gun manufacturers and hold them liable for anybody who was harmed as a result of the gun properly functioning. And we -- we went forward and passed, with the NRA's backing, a bill that put a ban on those types of lawsuits. If that ban had not been passed, if that gun manufacturer's liability bill, removing them from liability from that, had that not been passed, there would have been no gun industry in this country and there would have de facto been no Second Amendment right. Congressman Paul voted against that bill. And -- and that's a very big difference between someone who actually works with the gun -- Second Amendment groups for -- for legislation that can protect that right and someone who says they're for Second Amendment, has attacked me on my Second Amendment issues, which you just referred to, and here's a man that would have wiped out the Second Amendment by -- if his vote would have been -- carried the day.

BAIER: Congressman Paul?

PAUL: Hardly would that wipe out the Second Amendment. But the jurisdiction is obviously with the state. Even when tort law is involved with medical malpractice, which is a real problem, now, our governor worked on and our state has done a little bit on medical liability. I think that's the way it should be handled. You don't have -- you don't have national tort law. That's not part of the process. That should be at the state level. So to argue the case that that does away with the Second Amendment, when I'm the one that offers all -- all the legislation to repeal the gun bans that have been going on (inaudible) everything else. (APPLAUSE) I mean, I've introduced legislation like that. So that's a bit -- a bit of an overstretch to -- to say that I've done away with the Second Amendment.

SANTORUM: No, I need to respond to that, because the fact is, if we did not have a national liability bill, then people would have been able to go to states like, say, Massachusetts or New York and sue gun manufacturers where they would not pass a gun liability bill. So unless you have a national standard to protect guns --manufacturers of guns, you would create the opportunity for the elimination of guns being manufactured in this country and de facto elimination of the right to bear arms. (APPLAUSE)

PAUL: Well, this is the way -- this is the way our Constitution disappears. It's nibbled away. You say, well, I can give up on this, and therefore, I'll give that, and so eventually there's nothing left. But, no, tort law should be a state function, not a federal function.

What would you think if the owner of a grocery store chain took aim at the private financing of chicken farms, and demanded that the federal government ban partners from investing in the farms in exchange for a share of the gross revenues? Wouldn't you think that critic shouldn't butt his nose into someone else's business arrangements, and that Uncle Sam should stay out of the business of chicken farming?

And let's say that critic also charged that private farm financing encourages the farm operators to test questionable chicken-raising methods and produce substandard chickens. And that third-party financing raises a serious ethical question whether the farmer is more interested in the quality of his chickens or the outside financial backers. Wouldn't you think that the critic is also illogical in his thinking about the farmer's motivation and methods to produce good chickens? Isn't it more logical to believe that a chicken farmer would protect his partners (and his own position) by trying to raise the best chickens, using the best methods?

Yet that is the unique logic behind what the President & CEO of the U.S. Chamber of Commerce said in his annual "State of American Business" address. Thomas Donohue said the following:

We're also aiming to stop the alarming rise of third-party litigation financing. That's where outside investors fund lawsuits in exchange for a share of the award or settlement. This encourages the filing of frivolous claims. It invites testing questionable claims in court. It provides an incentive to prolong cases. And it raises serious ethical questions. Who does the lawyer really represent--his client or the outside financial backers? In our business, we hear dumb ideas every day of the week. But this one takes the cake!

Really? Let's walk through that statement.

First, the financing arrangements of any legally operated private law firm and its lawsuits are nobody else's business, and there's nothing in the U.S. Constitution that makes it Uncle Sam's or any state government's business. I don't care if you hate trial lawyers more than any profession in America, it's their business and their client's decision to file a particular lawsuit. And if the lawyers are running the firm and filing lawsuits legally, it's nobody's business how they get financed and paid (assuming, of course, they're not publicly selling stock in their firm). No privately held member of the U.S. Chamber wants Uncle Sam overseeing its financing arrangements. Isn't that why the Chamber fought the Dodd-Frank bill and actually sues to prevent excessive regulation of American business? What makes privately owned law firms so unique that the federal government should regulate their financial deals? And what would the Chamber say if Uncle Sam pried into its dues structure and contributors' list? Law firms are already subject to the the same government oversight regulations and mechanisms as any other privately held business.

Second, how does using third-party financing in any business invite poor decision-making with substandard inputs and a deterioration in quality? Why would a lawyer want to look like an idiot to his investors by filing crummy lawsuits with no chance of victory? Where in American business, or in any business in the world for that matter, does that happen? What made Mr. Donohue ascribe that type of illogical behavior to trial lawyers? Does he believe that third-party financing of any service industry results in poorer quality?

And if third-party financing of lawsuits is such a "dumb idea," as Mr. Donohue put it, why does it happen at all? Doesn't he trust "destructive capitalism" to put an end to any business practice that doesn't work?

Third, the statement is evidence of the Chamber's distrustful attitude towards local juries. Don't they think that a group of average Americans is smart enough to smell a truly frivolous claim from a mile away and deny the claim? The Founding Fathers trusted local juries and millions of Americans still do - apparently including the Chamber, whose member companies bring lawsuits to court all the time?

Nothing in that statement makes any sense to me, except that it's another way for the Chamber to infringe on our 7th Amendment right to a civil jury trial, and to cap the revenues earned by trial lawyers in their business. The business community fights against federal laws which would cap compensation for Wall Street executives, oil company executives, and any other business owner in America, and I agree with that position. But when it comes to contingent fee trial lawyers, the business community does a 180 and hypocritically wants Uncle Sam to tell the lawyer how much he can make and NO MORE.

The "cake" in this discussion belong to the Chamber for proposing such a dumb, unconstitutional and un-American idea.

Unfortunately, the Supreme Court has taken another opportunity to expand the use of forced arbitration clauses in consumer contracts, denying us the right to negotiate such clauses out and take our claims to a jury. On the heels of the landmark ATT Mobility v. Concepcion decision, the Court held in CompuCredit v. Greenwood, that companies that promise to repair an individual's credit can force customers into arbitration, instead of to a judge or jury trial, under the Federal Arbitration Act (FAA), even though the 1996 the Credit Repair Organizations Act gives consumers "the right to sue," because the latter act doesn't explicitly overrule the FAA. The impact of this decision extends the scope of the FAA and represents another in a string of decisions approving of forced arbitration clauses in consumer contracts.

A 1965 Supreme Court decision included a powerful summary of the detriments of arbitration: "Arbitration differs from judicial proceedings in many ways: arbitration carries no right to a jury trial as guaranteed by the Seventh Amendment; arbitrators need not be instructed in the law; they are not bound by rules of evidence; they need not give reasons for their awards; witnesses need not be sworn; the record of proceedings need not be complete; and judicial review, it has been held, is extremely limited."

Forced arbitration clauses are never negotiable by the consumer, and the proceedings are heavily biased towards the business. The FAA might now be the most powerful anti-jury trial federal law on the books, with consumers trapped.

On September 23, I posted about H.R. 1063, a bill introduced in the House titled the Strengthening Medicare And Repaying Taxpayers Act of 2011, or "SMART Act." This bill helps to replenish the Medicare Trust Fund, make Medicare work for seniors instead of the other way around, and reduces paperwork burdens for businesses. To reiterate: Under federal law, Medicare pays the medical bills while a recipient is injured and sues the other party, acting as the "secondary payer" for the bills pending the outcome of any legal action. Federal law requires the injured person's attorney to repay Medicare upon a judgment or settlement, before any funds are given to the injured senior. But the federal agency running Medicare hinders the repayment process, so it can take years to finally pay off even the smallest claim, and the senior doesn't see a dime of the settlement until that payoff. Moreover, the feds impose ridiculous reporting burdens and penalties on businesses under the same secondary payer law. The SMART Act streamlines the process, establishes real deadlines for the federal agency, and enables businesses to meet CMS reporting requirements while maintaining data security.

The leading sponsor in the House is Rep. Tim Murphy, a Republican representing the 18th District in Pennsylvania. Rep. Murphy serves on the key Energy & Commerce Committee in the House. I first met and worked with him while he was on the House Financial Services Committee, where I was the senior Republican oversight counsel from 2001 through 2003. He's a career psychologist, which can come in pretty handy when dealing with House Members and staff of both parties. I've seen that Rep. Murphy strives to work with Members on both sides of the aisle, while maintaining core conservative principles of limiting the size and scope of the federal government. So it's no surprise to me to see him leading the most bipartisan Medicare bill in Congress, with co-sponsors from Reps. Ron Paul and Allen West on the right to Reps. Diana DeGette and Tammy Baldwin on the left.

Rep. Murphy discussed H.R. 1063 and other issues on January 10 in an interview on the nationally syndicated What's Up radio program, hosted by Terry Lowry. In part 2 of the interview (download here), he noted, "Now it's interesting: defense lawyers, plaintiffs' lawyers,, retailers, stores, restaurants, everybody wants to fix this problem, except Medicare. And so there are hundreds of millions of dollars that sit out there that take forever for the bureaucracy to try and claim, and some of the sad news about this is that sometimes what Medicare does, they will sue some elderly person or ask for the money to come back from the elderly person, and say that if you don't pay us back, we're going to take it out of your Social Security... So we're trying to correct this..."

As Terry Lowry noted, Rep. Murphy has "a boatload of common sense," especially on this issue. This bill corrects the inefficiencies of a huge government bureaucracy affecting millions of Americans and the business community. The SMART Act and Rep. Murphy deserve strong support from all 7th Amendment advocates.

Within the last week, two conservatives who have previously opposed federal tort reform on constitutional grounds did so again. Judson Phillips, founder of Tea Party Nation, wrote Tort Reform? It's Unconstitutional on World Net Daily on December 13. He began by reiterating the Founding Fathers' support for the right to a civil jury trial:

First, there is no authority in the Constitution for the federal government to take over an area of law that has always been governed by the states. There is also no provision in the Constitution that allows the federal government to impose price controls on one industry or even one segment of an industry.

Perhaps more importantly, it flies in the face of what the founders undoubtedly considered the most important of the constitutional rights, the right to a jury trial.

The Founding Fathers considered the jury trial to be so important that it is the only right in the Bill of Rights that is specifically enumerated in two amendments.

Then Judson recounted the story of the McDonald's "Hot Coffee" case to show how the real facts of that case differ markedly from the mythology surrounding it, and how the jury decision in the case led to a change in corporate behavior:

In the end, the jury decided that Ms. Liebeck was partially at fault for the accident, so the damages award was reduced by 20 percent to $16,000. Ms. Liebeck asked for punitive damages, and the jury, after considering the evidence, awarded punitive damages of $2.7 million, or the equivalent of two days of profit McDonald's receives from its coffee sales.

In post-trial motions, the judge reduced the punitive damages to $480,000. In the end, McDonald's settled the case, and the details were kept confidential.

The free-market system is a wonderful system. It promotes good behavior and punishes bad behavior. McDonald's chose to sell its coffee at a temperature that caused injuries to people so it would make more money. The jury sent McDonald's a message, and today McDonald's does not sell its coffee at 190 degrees.

Rob Natelson, longtime law professor and constitutional scholar at the Independence Institute in Colorado, also reiterated his opposition to federal tort reform last week in an interview on the nationally syndicated What's Up radio program, hosted by Terry Lowry. On November 21, I posted about his new study, The Roots of American Judicial Federalism, in which he quoted from the numerous writings of the Founding Fathers. They clearly opposed any federal intervention in state judicial systems, including in civil justice issues. Rob's interview on December 12 was broadcast in four parts, with the third segment and the fourth segment (podcasts) the most pertinent, discussing the separation between federal and state powers as developed during the Founding Era. Proponents of federal tort reform ignore the sizable body of evidence presented by Rob Natelson and real Constitutional conservatives, but have lost the intellectual and political battle in Washington during 2011.

During the Huckabee Presidential Forum on Friday night, Virginia Attorney General Ken Cuccinelli challenged Rep. Michelle Bachmann on the constitutionality of federal tort reform legislation. Cuccinelli promised weeks ago that he would sue the federal government if the Senate version of a federal medmal limits bill was ever enacted. Bachmann refused to recognize each state's right to run local and state courtrooms. Afterwards, in referring to Bachmann's performance, Cuccinelli said on the Fox News Channel, "On tort reform, I was really surprised she departed from the 10th Amendment position. And I went back and gave her a chance to clean that up. She stuck to it. It was more important to her to have tort reform across the country than to leave it to the states." It's clear that Ken Cuccinelli represents the real pro-10th Amendment position.

You can see the short exchange starting at 4:44 on this clip:

On November 16, I posted here about the opposition to federal tort reform by Judson Phillips, the founder of the influential Tea Party Nation group, who defended the 7th Amendment right to a civil jury trial. Mr. Phillips repeated his defense of the 7th Amendment, as well as the 10th Amendment, in a new letter to the Speaker and Majority Leader of the House. He advised the House leaders to avoid adding limits on awards in health care and medmal lawsuits to any bill preventing cuts in Medicare payments to doctors (the ''doc fix'' bill). Mr. Phillips generously agreed to allow me to post the entire text of the letter below. I urge 7th and 10th Amendment advocates to send this letter to the local Congressman and Senator.

The Honorable John Boehner
Speaker
U.S. House of Representatives
Washington, DC 20515

The Honorable Eric Cantor
Majority Leader
U.S. House of Representatives
Washington, DC 20515

Dear Speaker Boehner and Majority Leader Cantor,

The Doc Fix bill, to prevent cuts in Medicare payments to doctors, will soon make its way through the Congress. One of the things that some medical groups, such as the American Medical Association, want to include in it is federal tort reform.

I strongly urge you, on behalf of myself and many others in the Tea Party movement, to keep that provision out of the Doc Fix bill.

The Tea Party strongly supports the Constitution and the Constitution is very clear on this. Not only does the Tenth Amendment reserve these kind of issues for the States, the Seventh Amendment protects the rights of Americans to a civil jury trial. The right to a jury trial was so important to our founding fathers, it was included in the Bill of Rights, not once, but twice.

I wrote about this on my blog on the Tea Party Nation website a few days ago. I said:

"The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior. If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me. The right to a jury trial has a long and storied history in America and even further back in Britain."

Our founding fathers understood how well the free market worked. The free market is a fundamental part of liberty and freedom. To encroach on them through "tort reform" is an abuse of the Commerce Clause of the Constitution and clearly runs afoul of both the 7th and 10th Amendments to the Constitution.

"Tort reform" is simply a gift to a special interest group. The American Medical Association, which has been pushing tort reform, is not interested in the Constitution. They want to protect doctors. Of course, the AMA also supported Obamacare, which should tell us almost everything we need to know right there.

Health care in America is expensive, not because of Americans exercising their constitutional right to seek redress for injuries in court, but due to the destruction of the free market in the health care sector of the economy.

The AMA and the insurance companies have destroyed the free market. There is no competition among doctors. Without that competition, there is no market efficiency created. Just as you have in any other sector where there is no competition, prices are inflated and there is no pressure to bring them down. So after destroying the free market in health care, now they want us to listen to them on an issue that will have the net effect of stripping Americans of one of the constitutional rights our founding fathers thought were important enough to include in the Bill of Rights.

Americans are looking to the Republicans in Congress for leadership, not for capitulation to special interests.

Federal tort reform is a bad idea and it should not be included in the Doc Fix bill. It is unconstitutional and it is a bad idea. As with so many bad ideas brought up by liberal groups, it will not achieve its goal.

Sincerely,

Judson Phillips,
Founder, Tea Party Nation

The Discovery Institute is a conservative think tank headquartered in Seattle, Washington, dedicated to "the reinvigoration of traditional Western principles and institutions and the worldview from which they issued." The Institute has a special focus, to emphasize "the role that science and technology play in our culture and how they can advance free markets, illuminate public policy and support the theistic foundations of the West."

The Institute is now highlighting a religious discrimination lawsuit brought by a former employee of NASA's Jet Propulsion Laboratory (JPL). David Coppedge was a 14-year veteran and the senior member of the JPL team that oversees computers for NASA's mission to send a satellite to Saturn, one of the most complicated in its history. He is also a fervent Christian and believer in the "intelligent design" theory of history, which contrasts with Darwin's theory of evolution, and he manages a website on creationism.

Over the course of a decade, Coppedge periodically discussed "intelligent design" with co-workers and offered them DVDs on the subject. Then, in March 2009, Coppedge's manager ordered him to stop "pushing religion," which resulted in an argument between the two, with Coppedge finally agreeing to halt such discussions. A month later, JPL suddenly demoted Coppedge and warned him that he had violated the ethics policy. Coppedge filed a discrimination suit against JPL in Los Angeles. JPL responded to the lawsuit by firing Coppedge. Mr. Coppedge is being defended by attorney William J. Becker Jr., who is supported by the Alliance Defense Fund, the outstanding group defending religious liberty across America.

On November 18, a Los Angeles County Superior Court judge ruled Friday that Mr. Coppedge is entitled to exercise his 7th Amendment right to a civil jury trial against the JPL. In an interview on the nationally syndicated 'What's Up' radio program, Discovery's legal affairs policy analyst, Joshua Youngkin, explained to host Terry Lowry the "very significant point" of the judge's ruling:

"The jury and not the judge will determine whether or not David Coppedge had his rights infringed. And that's a very important right that we all cherish."

As Terry Lowry pointed out, the right to a trial by jury was listed in the Declaration of Independence above the right to bear arms. Whether you believe in "intelligent design" or the Darwin theory of evolution is irrelevant. Every American is entitled to assert, before a local jury of peers, whether adverse employment actions were the result of religious discrimination. Americans who want to "tort-reform" away cases involving medical malpractice with damage caps and procedural hurdles rarely stop to think whether the tort reformers would then turn against other rights protected in the Bill of Rights.

You can listen to the pertinent portion of Terry Lowry's interview of Joshua Youngkin on the "What's Up" program by downloading this short podcast.

During a speech on November 11 at the national convention of the Federalist Society, Republican Senator Mike Lee of Utah discussed why he could not vote for the jobs bill proposed by Senate Republican leadership (he voted "present"), even though it included many economic growth proposals with which he agreed. The Senator made it clear that he would have trouble voting for any federal tort reform bill, because most such bills inherently override states' rights. Here is a transcript of the pertinent section of that speech:

I had a situation just yesterday in which members of my party put forward a proposal consisting of a lot of bills rolled together. I agreed with almost all of them. Almost all of them achieved some favorable policy objective. But there was one with which I fundamentally disagreed; not because it was bad policy, but because it was utterly reconcilable with principles of federalism to which I took an oath. There was one portion of this Republican jobs package that would have told state courts, applying state law, reviewing state causes of action, that they were subject to certain limits, all in the name of interstate commerce; all because these things, like everything else, have a substantial effect on interstate commerce. I wanted to vote for the bill. Were I a member of the state legislature in the State of Utah, I would have voted for that kind of tort reform. But I couldn't do it, because it's not within my power. It was painful not to be able to vote in favor of that bill, but sometimes we have to do painful things, even when they undercut our underlying policy interests. In other words, just as textualism and originalism need to be protected and preserved, they need to be followed religiously so that they don't come under fire, and correctly as I believe, as simple tools to bring about a conservative philosophical revolution of sorts, we in the political branches of government who are dyed-in-the-wool advocates of federalism need to stick to federalism. Federalism is the answer, not just because it leads to right results, but because it is the right result, and it is the law. (Emphasis mine.)

Senator Lee's comments were met with applause by the audience, who obviously recognized and approved of his steadfast allegiance to constitutional principles.

During questioning by the audience, Senator Lee conceded that Congress could enact "some medical malpractice reforms" for federal suits brought in federal courts under federal law, or if such a bill is tied to "the provision of medical services with federal funds." But the federal tort reform bills being pushed by the AMA and other medical groups are straightforward, head-on, bills to crush states' and individual rights in health care-related lawsuits. Personally, I don't foresee Republicans proposing a bill to limit Medicare or Medicaid recipients' right to civil litigation, because of the political backlash it would generate.

Senator Lee's courageous vote on that bill and his statement in his speech place him squarely among the many Republicans and Tea Party-side conservatives who have come to recognize the unconstitutionality of federal tort reform bills. That growing list includes Virginia Attorney General Ken Cuccinelli; constitutional law expert Rob Natelson of the Independence Institute; Professor Randy Barnett; Tea Party movement leaders Judson Phillips and Mark Meckler; and many others, including critics of the plaintiffs' bar, all of whom insist on upholding the Constitution and Bill of Rights over political objectives. They've found, as Rob Natelson has detailed in his new study, that the Founding Fathers clearly and specifically did not want state tort law and state courts pre-empted or overruled by Congress through federal tort reform.

You can watch Senator Lee's entire speech below; scroll to the 20-minute mark to hear him discuss this issue.

In their zeal to adopt a federal malpractice reform bill to dictate procedures to state courts, many Republicans in Congress are doing precisely what they rightly accuse Democrats of doing: blithely disregarding the Constitution's clear limits on federal power.

Their proposals, once encapsulated in H.R. 5 and then slipped into the Senate Republican "jobs bill," not only violate the true meaning of the Constitution, but also likely run afoul of such modern Supreme Court cases as New York v. United States and Printz v. United States, which voided efforts to impose unfunded federal mandates on state officials. The same Virginia attorney general who brought the first suit against Obamacare has threatened to challenge this measure in court as well.

The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty.

As I show in my new paper, "The Roots of American Judicial Federalism," one of the chief causes of the American Revolution was the British effort to undercut local courts by centralizing the administration of justice. As I also explain, after the Revolution Americans deliberately enshrined the local-control principle in our Constitution.

In other words, medical malpractice reform, like most other aspects of civil justice, is a matter for state, not federal, law. (Emphasis added.)

So wrote Rob Natelson, Senior Fellow in Constitutional Studies at the Independence Institute in Colorado, in a post titled, "Congress, Butt Out! The Constitution Reserves Malpractice Reform for the States" to introduce his newest research study, The Roots of American Judicial Federalism. Rob Natelson is one of the most respected constitutional scholars in America; was Montana's best known political activist -- leading, among other campaigns, the most successful petition-referendum drive in Montana history -- and in June 2000, was the runner-up among five candidates in the party primaries for Governor of Montana.

The Roots of American Judicial Federalism is not Rob Natelson's first foray into the federal medical malpractice debate. In April, he became the first of a long line of conservative and Tea Party-side activists and scholars who oppose federal medmal laws on federalism grounds. In his letter to Congress, he spelled out the constitutionally based objections to H.R. 5, the primary bill desired by the medical groups to limit all health care lawsuits, including those filed for medical malpractice. "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution's Commerce Power. Yet as I shall explain, its subject-matter--civil actions in federal and state courts--is not within the Constitution's meaning of 'Commerce.' Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate Commerce."

In the opening page of Roots, Natelson explains that the Founding Fathers were committed to reserving tort law for the states, even years before the drafting of the Constitution.

In drafting the Constitution, the Framers provided for additional federal judicial authority. Like the post-1768 pre-Revolutionary pamphleteers, however, they rejected proposals for a central government with power over all activities with inter-jurisdictional impact. Instead, they limited federal authority to items specifically enumerated. Reserved to the states would be nearly all the authority they had exercised previously, including power over state court procedures and over existing areas of substantive jurisdiction. With a few exceptions, therefore, the states were left in exclusive possession of the law of torts, contracts, inheritance, property, and criminal law.

When the Constitution became public in September, 1787, opponents argued that the Constitution could be construed to permit Congress or the federal courts to exceed prescribed limits. They contended that the new government might interfere with criminal and civil justice within the states. The Constitution, they said, should be rewritten to prevent manipulation of its terms by legal "sophistry."

To quiet such apprehensions, the Constitution's proponents explained to the ratifying public that the Constitution, if adopted, would grant only restricted authority to the new government. The Constitution's proponents listed for the ratifying public numerous areas in which the federal government would have no power and the states would enjoy exclusive power. Among the areas listed were several pertaining to state judicial systems.

The remainder of the study reveals the detailed writings of the Founding Fathers in support of judicial federalism. Professor Natelson quotes them time and again, including in letters and pamphlets that many Americans have probably never read before:

Like earlier authors, the writers of the 1774 pamphlets emphasized that judicial matters should be administered locally. In his Novanglus, (John) Adams pointed out that the dispute between colonists and the British government was not limited to taxes:

"Is the threepence upon tea our only grievance? Are we not in this province deprived of the privilege of paying our governors, judges, &c.? Are not trials by jury taken from us? Are we not sent to England for trial? Is not a military government put over us? Is not our constitution demolished to the foundation?"

Alexander Hamilton, in A Full Vindication of the Measures of Congress, agreed:

"Give me the right to be tried by a jury of my own neighbors, and to be taxed by my own representatives only. What will become of the law and courts of justice without this? The shadow may remain, but the substance will be gone. I would die to preserve the law upon a solid foundation; but take away liberty, and the foundation is destroyed."

Professor Natelson discusses the assurances that delegates to the Constitutional Convention gave to the public that the right to a civil jury trial would not be abridged:

At the New york convention, Hamilton underscored exclusive state jurisprudence over internal state administration, arguing that state powers are "civil and domestic--to support the legislative establishment, and to provide for the administration of the laws." He added that:

"Were the laws of the Union to new-model [reform] the internal police of any state; were they to alter, or abrogate at a blow, the whole of its civil and criminal institutions; were they to penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals,--there might be more force in the objection; and the same Constitution, which was happily calculated for one state, might sacrifice the welfare of another."

Chancellor Robert R. Livingston assured the convention that state power over traditional areas of judicial power was exclusive:

"They tell us that the state governments will be destroyed, because they will have no powers left them. This is new. Is the power over property nothing? Is the power over life and death no power? . . .In one word, can [Congress] make a single law for the individual, exclusive purpose of any one state?"

Natelson concludes by discussing the fight to recognize the right to a civil jury trial and the states' right to run their own civil justice systems through a Bill of Rights.

Federalists had to go beyond representing the meaning of disputed provisions. They also had to promise that they would support a bill of rights once the Constitution was ratified. Five of the 11 ratifying state ratifying conventions had accompanied their approval with suggested amendments. The two states that thus far had refused to ratify, North Carolina and Rhode Island, determined to stay out of the union until a bill of rights was proposed.

Among the restrictive amendments were some restraining the federal judiciary. Thus, the Fourth Amendment regulated judicially-issued warrants, the Fifth barred double jeopardy, the Seventh prescribed jury trial in civil cases, and so on. The Ninth and Tenth Amendments were the declaratory amendments. They highlighted the limited scope of federal powers, including federal powers over judicial matters.

Although the Ninth Amendment is widely misunderstood today, its principal role was as a protection for federalism, including judicial federalism. It affirmed that Congress was no more able to impair the independence of the state judiciaries after adoption of the Bill of Rights than had been true before adoption.

The Tenth Amendment, based on the most popular proposal from the states, reinforced that whatever was not given was reserved. It may have been targeted specifically against claims raised during the Confederation period that, despite the Articles' limits on congressional power, Congress enjoyed additional "inherent" authority merely by virtue of being a sovereign.

In other words, both the Ninth and Tenth Amendments rendered explicit the Constitution's implicit restraints on Congress and the federal judiciary, as explained by Federalist essayists during the ratification debates. Both amendments protected the exclusive sphere of the states, including the integrity of the state courts.

Rob Natelson's study is a enormously revealing and powerful paper that will assist real constitutional conservatives in their fight against the federal takeover of state courts. The tort reform movement finds itself without intellectual ammo, and cannot cite any writing from the Founding Fathers in support of their positions (I've offered free dinner on that). I will post quotes from this outstanding paper throughout the coming weeks.

Over a year ago, I first posted an open bet with an offer to buy the winner the best dinner in Washington, DC. I've re-posted that twice, and want to renew the bet now, because no one has even tried to win the bet. Here it is:

If anyone shows me ONE, just ONE quote from any of the Founding Fathers that is pro-"tort reform," I'll buy you the best dinner in Washington, DC, with your choice of appetizer, entree, wine (2 glasses only, $50/bottle max) and dessert. After researching the Founders' quotes on the subject for months (see the links in the right sidebar on the home page), I'm supremely confident that I have nothing to fear. For purposes of this offer, I'm defining the term "Founding Fathers" based on a list at this website, which includes signers of the Declaration of Independence, the Constitution, and other notable figures from the founding of the United States.

I would value this dinner at roughly $200 but I'm not limiting the offer to that amount. Go ahead, make my day!

The Medicare Sustainable Growth Rate (SGR) is the method enacted in 1997 to control spending by Medicare on physician services, and ensure that the yearly increase in the expense per Medicare beneficiary does not exceed the growth in GDP. Every year, the Centers for Medicare & Medicaid Services and the Medicare Payment Advisory Commission advise Congress on the previous year's total expenditures and the needed adjustment in Medicare payments to doctors. For years, the calculation has resulted in a planned cut in payments, but Congress has repeatedly delayed the cuts. Last year, Congress and President Obama again delayed the implementation of the payment cuts until January 1, 2012. On that date, it is estimated that the SGR will be a cut of at least 20% in payments. Physician groups, especially the American Medical Association, are lobbying for a permanent change to the SGR methodology, called the "doc fix" inside the Beltway, to prevent annual cuts.

I can understand the desire of the doctors' groups to rationalize the process and avoid painful SGR cuts, which could result in an actual reduction in medical services for those who most need them. But already we've seen political allies of the AMA recommend that Congress pay for the "doc fix" by crushing the constitutional rights of all Americans and instituting sweeping nationwide limits on medical malpractice and health care-related lawsuits. Anybody who reads my posts here already knows of the numerous conservatives and Tea Party-side legal experts who condemn any such federal tort reform law as an unconstitutional infringement on states' and individual rights. That's reason alone to not pursue that option.

But there's another reason why Congress shouldn't try to pay for the "doc fix" with medmal limits: the CBO's estimates of revenues resulting from the institution of federal limits on medmal lawsuits are fatally flawed. The AMA and its allies continuously promote a CBO estimate, released during the ObamaCare debate, that medmal limits would save close to $60 billion over ten years. Here are the flaws in that estimate:

First, CBO not only has a lousy record of estimating ten-year budget deficits and projections of policy impacts, but it's missed often on just year-to-year projections. It's no wonder that House Majority Leader Eric Cantor accused the CBO of outright "budget gimmickry" in its calculations last year on the supposed "savings" that would result from enactment of the Affordable Care Act, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, CBO admitted last year that it did not "consider the effect of tort reform on patient health and medical outcomes." Remarkably, the CBO determined that "many studies of malpractice costs do not examine health outcomes." In fact, implementing CBO's projection of "savings" could actually result in more deaths and injuries. CBO admitted in its estimate that limits on medmal lawsuits could "an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines." And another 400,000 or more patients could be injured during the same 10 years.

Third, the CBO can't estimate the impact that sweeping limits on medmal lawsuits would have on federal health care costs paid for by Medicare, Medicaid, and the Veterans Administration. If someone is brain-damaged, mutilated or rendered paraplegic as a result of medical negligence, but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn to those programs for compensation. None of these increased Medicaid or VA hospital costs are considered in the CBO estimate. Whenever there is a successful medical malpractice lawsuit involving an elderly or poor person, Medicare and Medicaid can claim either an interest in whatever the patient recovers, so the victim reimburses the government for some of the health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup. And none of these lost funds are considered by the CBO.

Fourth, CBO guesstimated that imposing federal lawsuit limits would result in a reduction in a drop in liability insurance premiums, but provided no raw data, explanations, or sources to back up its estimate. Numerous states have already imposed caps on medmal lawsuit damages, with no impact on personal health insurance premiums. In fact, a new study by the Commonwealth Fund shows health insurance premiums rising rapidly in California since 2003, despite the state's very tough limits on awards in health care-related lawsuits. CBO makes the assumption that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out in California?

In conclusion: Anyone betting on federal lawsuit limits to pay for the "doc fix" is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems. Congress should reject any proposal to impose federal limits on health care-related lawsuits, and instead spend its valuable time designing a constitutional and mathematically reliable "doc fix" solution.

A second leader of a national and influential Tea Party group has joined the chorus of conservatives against any federal tort reform law. Judson Phillips, founder of Tea Party Nation, posted on the website yesterday that the jury system is part of the free market, and to interfere with the jury system violates the 7th Amendment to the Constitution. The website requires registration to read the post, but Judson generously allowed me to post a segment of his article.

"The free market is a wonderful system. It produces amazing efficiencies and amazing wealth. The free market system has delivered more prosperity to more people than any other system. There is another beauty to the free market system that many people do not think about. The free market system punishes bad behavior. If I open a business and decide to sell something that is a really bad product, people do not come to my business. I have the incentive to produce a really good product because that way people will want to come to my business.

The civil jury system is a part of the free market. Our founding fathers thought enough of it to make it the 7 th Amendment to the Constitution. Jury awards are a part of the free market. They do not exist in a vacuum. They not only compensate someone for an injury but like so many other parts of the free market, they act to deter bad behavior.

If I am injured by a bad doctor or suffer some other type of injury or loss, I do not want the Federal Government telling me what my pain is worth. I want twelve citizens deciding justice for me.

The right to a jury trial has a long and storied history in America and even further back in Britain.

Much as the Federal Government is overstepping its bounds by ordering Americans to buy health insurance, the government is also overstepping its bounds by telling citizens and states how much they can award in law suites and also telling lawyers how much they can be paid. (sic)

The free market is an amazing thing. It needs almost no intervention to achieve the right result, and the civil jury trial is an important part of the free market.

Take a moment to tell your Senators and Congressmen we do not need the federal government telling states what to do and trampling on another one of our constitutional rights."

This spring, Tea Party Patriots co-founder and national coordinator Mark Meckler voiced his opposition to federal tort reform on the grounds that it violates states' rights. "Most folks in the tea party movement would say those things should be dealt with at the state level," Meckler said. "It's not for the federal government to be adjusting the legal system of individual states."

It's great to see these two leaders of the popular movement to restore the primacy of our Constitutional rights forcefully reject the attempt to override state and individual rights. We need to bring these statements to the attention of every Member of Congress, especially the Republicans under pressure to enact federal tort reform.

Tomorrow, the House Foreign Affairs Committee will hold a hearing titled, "Righting the Enduring Wrongs of the Holocaust: Insurance Accountability and Rail Justice," to examine the facts and circumstances underlying two bills. First, H.R. 890, the Holocaust Insurance Accountability Act, would allow Holocaust survivors to rely upon state laws so they can have their day in court. It also requires the European insurance companies to disclose Nazi-era insurance policy information, and establishes a federal right of action to recover proceeds due under the covered policies. Second, H.R. 1193, the Holocaust Rail Justice Act, would prevent the French national rail company SCNF from claiming foreign sovereign immunity in a class action law suit brought against them by Holocaust survivors. SNCF trains transported 76,000 individuals to concentration camps during the Holocaust.

A group of Holocaust survivors sued SNCF in 2001, arguing that the company knew of and should be liable for the horrid conditions Jews were forced to endure on their way to Nazi death camps. The company has argued in court that it is an arm of the French government and therefore immune from suit under the Foreign Sovereign Immunities Act, but the plaintiffs claim that it is a separate entity. The Supreme Court sided with SCNF and dismissed the lawsuit under the FSIA; H.R. 1193 would strip SCNF of any FSIA immunity and enable the plaintiffs to reinstate the case.

Both bills have broad bipartisan support. The committee chairman, Rep. Ileana Ros-Lehtinen (R-FL), is the original sponsor of H.R. 890 and a co-sponsor of H.R. 1193, and has always supported the 7th Amendment rights of Holocaust survivors. In 2010, while supporting the Holocaust Insurance Accountability Act, Rep. Ros-Lehtinen said, "Holocaust survivors, just like anyone else, should have the right to have their day in court to recover under their policies... It is not in the interests of the United States to deny survivors their legal rights." That's the kind of pro-7th Amendment sentiment we need more of in Congress.

I've written often here about the unconstitutional bill to crush states' and individual rights that Senate Republican leadership slipped as a special section into S. 1720, the "Jobs Through Growth Act." The section would impose a federal limit on awards in health care-related lawsuits (not just medical malpractice awards), and would establish a federal wage scale for just one set of American workers, the attorneys who litigate such cases for victims. Republican leaders added that section into the jobs bill without the knowledge of many Republican Senators, and a number of them told me personally that they oppose federal encroachment on state civil justice systems. Nevertheless, it appears that leaders are demanding that their members walk the plank for that section. Yesterday, the jobs bill was introduced as an amendment to another bill currently under Senate consideration, and the unconstitutional tort reform section is included in the amendment. We might see a vote on this bill as soon as tomorrow. They're doing so despite the principled opposition of conservatives, such as Virginia Attorney General Ken Cuccinelli; the Cato Institute; anti-ObamaCare Professor Randy Barnett, Rob Natelson, John Baker; the National Conference of State Legislators; numerous House Republicans; and other conservative legal experts. Senate Republican leadership seems all too ready to sacrifice constitutional principles to reward the AMA and other medical groups, even though they stabbed Republicans in the back by backing ObamaCare - that seems to me to violate one of the first rules of practical politics about punishing enemies.

Seventh and Tenth Amendment advocates need to immediately tell Senate Republicans to pull that section out of the bill before any votes on the bill.

On October 31, I posted about the promise by Virginia Attorney General Ken Cuccinelli to veto a federal tort reform bill that is now included in the Senate GOP jobs bill. Attorney General Cuccinelli joined a long line of conservative legal experts in opposing federal tort reform as a violation of states' rights. In addition to violating states' rights, the Senate GOP jobs bill establishes federal wage controls on attorneys. Sec. 3206 of the bill, S. 1720, states:

"(B) LIMITATION- The total of all contingent fees for representing all claimants in a health care lawsuit shall not exceed the following limits:

(i) Forty percent of the first $50,000 recovered by the claimant(s).

(ii) Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s).

(iii) Twenty-five percent of the next $500,000 recovered by the claimant(s).

(iv) Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000."

Is this really the precedent that the Senate GOP wants to set while it complains about the unconstitutionality of ObamaCare, the excessive regulation of American industry by EPA, and the high tax burden faced by our corporations? Who wants to see the headline, "Senate GOP Talks Free Markets, Votes For Communism?" Were Democrats right after all when they wanted to enact laws against excessive compensation for Wall Street executives?

By the way, why would the Senate GOP reward "Big Medicine," which pushed ObamaCare and continues to back it against the GOP's efforts to repeal it? Whatever you think of the trial lawyers, they didn't work to enact the individual mandate - the AMA, AHIP, and PhRMA did. Why reward them with special federal immunity?

The Senate GOP should delete the entire tort reform section from their jobs bill before any floor vote.

In a Washington Post op-ed posted October 28, Virginia Attorney General Ken Cuccinelli promised to file suit in federal court against a federal tort reform bill should it become law. "And if it were ever signed into law -- by a Republican or Democratic president -- I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later)."

Attorney General Cuccinelli strongly objected to S. 197, a bill sponsored in the U.S. Senate by eight Republicans, which would impose caps on awards in health care-related lawsuits and install a federal wage scale for contingent fee attorneys involved in such suits. The bill was slipped into a Senate Republican "jobs bill" in October by Republican leadership without the knowledge or approval of numerous Republican Senators, just to appease the AMA and other medical groups clamoring for special federal protection from civil liability. Attorney General Cuccinelli, a rising star in the conservative community for his lawsuit against ObamaCare and assertive defense of conservative legal positions, emphasized the constitutional right of each state to protect and run its local civil justice system:

"With Senate Bill 197 -- legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award -- several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. As a state attorney general struggling to hold back a flood of impositions by the Obama administration that violate federal law, the Constitution or both, it is disappointing to see so many Republicans making the same types of mistakes that President Obama and his allies have made...

Senate Bill 197 takes an approach that implies "Washington knows best" while trampling states' authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?"

Attorney General Cuccinelli's promise to sue is the most forceful of a series of conservative and Tea Party-side condemnations of the Senate bill and of federal tort reform legislation in general. The libertarian Cato Institute recently announced that caps on medical malpractice lawsuit awards would endanger patients and wouldn't reduce health care costs. The attorney who wrote the Senate Republicans' court brief against ObamaCare, Carrie Severino, publicly urged Republicans to remove S. 197 from the jobs bill before introduction, but they ignored her. Professor Randy Barnett, one of the counsels arguing the key anti-ObamaCare lawsuit in federal court, accused S. 197 backers of being "FINOs" ("Federalists in Name Only"). In May, Professor Barnett accused House Republicans who backed a bill similar to S. 197 of being "fair-weather federalists." Six conservative legal experts, including two who regularly criticize trial lawyers, joined Professor Barnett at that time in characterizing bills to federalize medical malpractice lawsuits as an unconstitutional violation of states' rights. The non-partisan National Conference of State Legislators joined them in a letter to House Republicans against the House bill.

The AMA and its allies in the medical profession have pushed the federal tort reform bills, just as they have backed ObamaCare with its equally unconstitutional individual mandate. For 30 years, they've used their political muscle inside the Beltway, and millions of dollars in political contributions across America, as the way to persuade Congress, especially Republicans, to enact special immunity from civil liability, regardless of the constitutional implications. Republicans will have to ignore the medical profession's misshapen view of Washington as the center of political power in order to protect our constitutional rights. Attorney General Cuccinelli's forceful warning might be the nail in the coffin of the AMA's dreams.

I've written often about the scores of American victims of Libyan-sponsored terrorism who have not received the compensation promised them by the United States government in law. The Libyan Claims Resolution Act of 2008 promised compensation from Libyan funds for those injured or killed in terrorist attacks sponsored in some way under the Qaddafi regime. Up to 200 of the victims' claims have been unpaid, over three years after the law was signed, even though the claims have been certified by the Justice Department. The claimants have received an insulting letter from the Treasury Department, informing them that they will receive 20 percent of the amount due to them, but with no mention of a timetable for the payment of the remaining 80 percent.

CNN ran a story this week, which you can see on CNN's YouTube channel, with interviews of several of the victims, including Jonathan Pollack, with whom I've communicated this year. A State Department spokesperson told CNN that "It is premature to determine that there will be a shortage of settlement funds," but the group of attorneys working on these cases, including my clients at Motley Rice LLC and the Perles Law Firm, know full well that the LCRA fund is short several hundred million dollars. Jonathan and the victims are seeking Congressional intervention, and I am finally beginning to see some movement in Congress towards a legislative solution if the State Department can't or won't fix it administratively. I cannot believe that the Obama Administration would callously ignore the property rights established in favor of the American claimants in law and administrative procedure, but so far it has refused all entreaties by the victims and Congress to ensure full payment of the claims. With Qaddafi dead and the new government apparently unwilling to volunteer any of Qaddafi's stolen funds now frozen around the world, it may take an act of Congress to ensure that the promises made in 2008 to Americans are actually kept.

This afternoon, the House Judiciary Committee is holding a hearing on ''The State of Religious Liberty in America.'' Among the witnesses will be Colby May, Director and Senior Counsel of the Washington office of the American Center for Law and Justice (ACLJ), one of the premier pro-religious liberty groups in America. Colby May goes to court all the time to protect religious liberty, taking advantage of the 7th Amendment rights protected by the Founding Fathers to enable Americans to exercise our faith without infringement by the federal or state governments. His testimony recognizes that, ''The courts and the judges that preside over them will largely determine the strength of America's religious liberties.'' And he is testifying about the recent instances in which courts have failed to protect our rights against a college administrator, such as has happened at the University of California in the Christian Legal Society v. Martinez case.

I hope Members and witnesses remember that to survive, religious liberty needs open courtrooms. Any measure to restrict the ability of Americans to file a lawsuit in court compromises our ability to defend our religious liberty. So, for instance, the Judiciary Committee's original bill to toughen sanctions against attorneys under the Federal Rules of Civil Procedure could have resulted in a nonprofit's or small-sized law firm's refusal to take on a religious liberty lawsuit because of potential attorney sanctions. That's why the committee added a rule of construction to exempt lawsuits over constitutional issues from application of the proposed sanctions. Similarly, the application of the Supreme Court's decisions in the Iqbal and Twombly cases could result in the dismissal of a religious liberty case that would otherwise proceed to the discovery, if the attorney can't provide the threshhold level of documentation needed to meet the stricter pleading standards enunciated by the Court in those cases. A plaintiff seeking to protect religious liberty rights against an overbearing college or business might find it difficult to meet the standards if witnesses to the behavior at issue are afraid to come forward without a subpoena.

The Founding Fathers didn't differentiate between lawsuits to protect constitutional rights and lawsuits for negligence; they designed the civil justice system for all causes. The "tort rerform" movement could continue to spark conflict with social conservatives over the access to civil justice, unless Americans tell Congress and state legislatures to keep courtroom doors opened.

I've discussed the inherent conflict between Islamic Shariah law and our Constitutional rights numerous times here. Last year, I assembled a panel on Capitol Hill of experts and a Congressman to address the threat of encroaching Shariah law in the U.S. Under strict Shariah, there are NO juries for civil or criminal law, and NO rules of criminal or civil procedure protecting the rights of the accused and allowing for pre-trial discovery. Women are relegated to an inferior status in a courtroom, as well as in all other aspects of a society governed by Shariah.

On October 17, the "What's Up" syndicated radio program, hosted by Terry Lowry and heard on 12 stations in 10 states, interviewed Karen Lugo, a nationally recognized expert on Shariah. I met Karen earlier this year and introduced her to Terry Lowry so he could better educate his audience on Shariah. In her professional career, she's Assistant Director of the Claremont Institute Center for Constitutional Jurisprudence, where she works on constitutional litigation, including eminent domain and city planning disputes, and the preparation of amicus briefs. She is also President of the Orange County, California, Lawyer Chapter of the Federalist Society.

Karen discussed the rapidly expanding number of Shariah enclaves in Europe, in which the Muslim residents don't want to be governed by the law of the country. This institutionalizes complete inferiority for women. and enables the growth of "shadow justice" communities, with 700 enclaves in France alone.

Under Shariah, divorce can be unilaterally pronounced by the husband, with the husband controlling asset distribution. Women cannot easily pursue marital rape or assault claims in a Shariah courtroom, which is run by an Imam under rules favoring the husband. Karen discussed the most serious dangers of Shariah: an arbitrary set of laws and regulations governing every aspect of society from domestic relations to international relations. Civil and criminal cases are decided by mullahs or clerics, not through the application of a "rule of law."

As I discussed on June 3, local judges in U.S. are accepting Shariah law in domestic relations and estate settlement cases in the name of judicial comity. Karen has participated in the effort to enact legislation in states to ensure that American law is applied in American courts, and a model act has been signed into law in four states.

You can download and listen to Terry Lowry's interview with Karen below, conducted in three segments:

Segment One
Segment Two
Segment Three

"Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere."

That's the conclusion of a new study released by the most respected libertarian think tank in Washington, declaring that capping medical malpractice damages is a very bad idea for consumers, and further declaring that awards in medmal lawsuits aren't excessive compared to actual damages. This study will rock the AMA's world, even as it continues to press Congress for special protection through an unconstitutional limit on awards in all health care-related cases. The study wasn't conducted by trial lawyers or a bunch of liberals, but by an academic for the Cato Institute, which has lots of fans among the new House Republican majority and among the GOP Senate minority.

Read it yourself and send it to your favorite tort reform proponents. Here are selections from the Executive Summary:

Supporters of capping court awards for medical malpractice argue that caps will make health care more affordable. It may not be that simple. First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as a result of physician negligence. Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries...

This paper reviews an existing body of work that shows that medical malpractice awards do track actual damages. Furthermore, this paper provides evidence that medical malpractice insurance carriers use various tools to reduce the risk of patient injury, including experience rating of physicians' malpractice premiums. High-risk physicians face higher malpractice insurance premiums than their less-risky peers...

In particular, caps on damages would reduce physicians' and carriers' incentives to keep track of and reduce practice risk. Laws that shield government-employed physicians from malpractice liability eliminate insurance company oversight of physicians working for government agencies...

There's even more in the body of the study, such as:

Some observers are skeptical that medical malpractice awards are the driving force behind excessive tests and procedures, claiming that physicians deliver these services because they are risk-averse, to please patients, or to generate additional income rather than to avoid liability.

Furthermore, defensive medicine is not necessarily undesirable. A well-functioning malpractice system would not eliminate defensive medicine. Rather, it would discourage the use of inefficient defensive medicine, where the expected costs of a test or treatment exceed the expected benefits, and promote efficient defensive medicine, where expected benefits exceed expected costs.

Opponents of damage caps rightly point out that caps shift the costs of malpractice injuries from negligent providers to their victims.

The study recounts the moving story of a tort reform lobbyist who became the victim of his success in capping damages after he had suffered from medical negligence, and later wrote, "Make no mistake, damage caps... remove the only effective deterrent to negligent medical care."

It also slams state medical boards for letting bad doctors continue to practice. "State medical boards do a poor job of informing the public about high-risk physicians, often to the point of protecting those physicians from public scrutiny. Another mark against the state system is that the regulatory apparatus can be manipulated by special interest groups to limit competition through scope-of-practice restrictions."

Every Member of Congress, especially those on the deficit reduction "Supercommittee," should be forced to read this study.

Professor Randy Barnett, co-counsel in the leading lawsuit case against ObamaCare and likely to argue the case before the Supreme Court, takes aim again at federal tort reform proposals in a post on "The Volokh Conspiracy," this time at the inclusion of S. 197 the "MCAP Act' tort reform bill, in the Senate GOP jobs plan released last Thursday. "Over the summer I criticized a House Republican medical malpractice reform as "fair-weather federalism" in this op-ed in the Washington Examiner: Tort reform and the GOP's fair-weather federalism. Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new "jobs" bill. " I've quoted from that piece often here, most recently in my letter to the deficit reduction "supercommittee" considering cuts to future federal spending.

Professor Barnett approvingly quotes from Carrie Severino's post critical of S. 197 on NRO's "Bench Memos" today, and personally criticizes the Senate Republicans: "Yes, you read that right. Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that "affect[s] commerce."

He then adds, "With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative FINO: "Federalists in Name Only"? Oh well, I guess not. But the best thing that can be said about this proposal is that it won't become law."

Let's hope not. I am actually most concerned that pro-tort reformers among the House Republican leadership will ignore the Constitution, transform the Senate GOP plan into a House bill, and force their members into an up-or-down vote as a test of allegiance. Seventh and Tenth Amendment Advocates need to contact the Senate and House and tell them to drop this idea.

Writing in National Review Online's "Bench Memos" today, conservative activist Carrie Severino criticized the Senate GOP leadership for including S. 197, the "MCAP Act," in the Senate GOP jobs plan, and urged them to drop it. "The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power... As Georgetown law professor Randy Barnett explains here, in a piece criticizing Republicans for their fair-weather federalism, '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.'.. I hope Senate Republicans will consider replacing or removing S.197 from their jobs bill."

Severino's conservative credentials are impeccable; she's a former clerk for Supreme Court Justice Clarence Thomas and appellate Judge David B. Sentelle, another conservative jurist. Her piece will have clout on Capitol Hill and reflects growing unease among Republican activists and legal experts over that section in the Senate GOP jobs plan. Hopefully the leaders will listen to her advice.

Sen. Chuck Grassley, ranking Republican of the Senate Judiciary Committee, wrote to the deficit reduction "Supercommittee" last week to recommend a number of measures for inclusion in its recommendations to Congress. On page 15 of his letter, he recommended inclusion of S. 197, which would mandate caps on certain health care-related damages awarded in any court in American, and create the first federal wage scale for attorneys in the history of the U.S. That bill was included in the Senate GOP jobs plan and inexplicably endorsed by self-proclaimed "states' rights advocates," even though it would wipe out all state-based civil litigation over health care disputes. As I wrote when analyzing the jobs plan and in my letter to the Supercommittee, such a bill is inconsistent with Republican opposition to ObamaCare and violates constitutional protections for states' and individual rights.

Sen. Grassley's support for S. 197 is also hopelessly inconsistent with his previously stated support for Americans to "have their day in court" when their rights are threatened. He challenged Supreme Court Justice Sonya Sotomayor on this point during her confirmation hearing over an eminent domain case, as follows:

Let me move on to the Didden case v. the Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national chain drugstore.

At the meeting with the government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project. And if Mr. Didden did not accept either condition, the government would simply take his property.

Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The district court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts, in essence, allegations of extortion at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?

Sen. Grassley also championed the rights of African American farmers who were discriminated against to have their claims heard. When a major farm bill was enacted in 2008, Sen. Grassley issued the following statement:

Senator Chuck Grassley, the original author of the Pigford Claims Remedy Act, today praised passage of the farm bill which includes funding to help African American farmers who were denied entry into the Pigford v. Glickman settlement. The farm bill will now be sent to the President.

"This is a tremendous step forward in our efforts to give black farmers and ranchers, who were unjustly discriminated against while trying to secure farm loans, an opportunity to have their claims heard," Grassley said. "We're putting in place a process where tens of thousands of African American farmers will be able to plea their case based on the merits. Not based on bureaucratic procedure and mumbo-jumbo."

What happened to that guy? Where is he now?

I agree with Sen. Grassley that every American should have his day in court to protect private property rights. One of the points of my work is to emphasize that the Founding Fathers created our civil litigation system to protect victims of infringement upon private property rights, gun owners' rights, and free speech rights - AND - medical malpractice victims and defective product victims. The Founders loved civil suits and never limited our access to civil justice - and I'll bet anyone the best dinner in DC on that point.

So why has Sen. Grassley flip-flopped on our rights and abandoned victims of health care negligence? No part of the Constitution, Bill of Rights, or the Founders' writings justify his turning his back on a medmal victim's day in court. What part of the founding documents of our democracy does Sen. Grassley not understand?

The new Senate GOP jobs plan released yesterday by Senators John McCain and Rand Paul might spur economic growth if enacted, but it has one enormous and extremely serious flaw. It explicitly includes a section titled, "Medical Malpractice Reform (S. 197 - The Medical Care Access Protection Act)," abbreviated as the "MCAP Act." That bill, introduced in January by Republican Senators, is very similar to H.R. 5, the House Republicans' bill to impose federal limits on health care-related lawsuits, about which I've written often here. That bill has been frozen in the House, thanks to the Constitutional and political objections of many House Republicans. By referring to S. 197, the Senate GOP jobs plan would enact many of the goals set forth in H.R. 5.

For starters, the introduction in the MCAP Act states that "health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce." So the Senate GOP would continue to accept the expansion of the reach of the Commerce Clause begun under Wickard v Filburn, the Supreme Court decision condemned by conservative legal experts such as Randy Barnett and Rob Natelson and by Tea Party-side politicians such as Sen. Paul. That expanded scope reached its most extreme in the enactment of ObamaCare. Professors Barnett, Natelson, and other conservative experts point out that neither "health care" nor "tort law" are among the enumerated powers delegated to the federal government in the Constitution, and that expansion of federal law into those areas violates the Ninth and Tenth Amendments to the Constitution.

The MCAP Act crushes each state's right to manage its own civil justice system with respect to any lawsuit related to health care (i.e., providers and insurance companies). It imposes, for the first time in American history, federal limits on certain damages to be awarded in a health care-related lawsuit filed in either federal or state court. It mandates a standard for the award of punitive damages in any health care-related lawsuit filed in any court in America. It establishes, in federal law, a rule to determine the proportionate fault of each party in any federal and state court hearing a health care-related lawsuit. In doing all this, the act, included in the Senate GOP jobs plan, forces a one-size fits-all legal system for these lawsuits on the states. It also abridges our right to a civil jury trial, protected in the Seventh Amendment to the Constitution and beloved by our Founding Fathers.

The MCAP Act explicitly limits an attorney's fees to a decreasing percentage, based on the increasing value of the amount awarded. Here's the scale set in the bill:

(1) 40% of the first $50,000 recovered in the lawsuit;

(2) 1/3 of the next $50,000 recovered;

(3) 25% of the next $500,000 recovered; and

(4) 15% of the amount of the recovery in excess of $600,000.

So the bill imposes federal wage controls on just one industry, lawyers who charge contingent fees, regardless of the amounts normally charged by an attorney in the normal course of his business. And the bill lets federal judges cut the contingent fees to be paid for any reason, with no real limit on a judge's authority. No other profession in America - certainly not the medical profession - face a federal law mandating a specific wage scale. That is outright communism. And the bill changes other legal standards and mandates them across every courtroom hearing any health care-related lawsuit in America.

The House equivalent of the MCAP Act was roundly condemned by Professors Barnett, Natelson, and other conservative legal experts, including two who are highly critical of trial lawyers. All stated that a federal law limiting health care-related lawsuits violates the Constitution and subsumes states' rights. Professor Barnett, one of the co-counsels in the anti-ObamaCare lawsuit which will probably be heard by the Supreme Court, called Republican backers of H.R. 5 "fair-weather federalists." The Senate GOP intentionally ignored their warnings and endorsed a sweeping takeover of state health care and tort law and state courtrooms, relying on the same excessive interpretation of the Commerce Clause relied upon by Democrats in enacting ObamaCare.

But it gets worse. This portion of the Senate GOP jobs plan not only grants special legal protection to one industry above all others, but it benefits those medical associations which have endorsed and heavily lobbied for the enactment and implementation of ObamaCare.

That's right: the Senate GOP caucus, including Rand Paul, is explicitly rewarding the AMA and those medical associations which were the co-conspirators in the enactment of ObamaCare, with its communist individual mandate to buy health insurance. Our Republican Senators are abandoning states' rights and our right to seek a civil jury trial to protect the doctors, hospitals, and insurance companies who pushed for ObamaCare with the promise of millions of forced patients. They get special legal protection that they don't deserve and benefiting no other industry or group in America.

We should be stunned, disappointed and angry that Senate Republicans, especially those Members supposedly pledging allegiance to the Tenth Amendment, trashed our rights and the Constitution to help ObamaCare's backers. We should demand that they abandon that section of the jobs plan and pledge that it will never become law.

I've delivered a nine-page letter to the office of each of the 12 members of Congress who sit on the Joint Select Committee on Deficit Reduction, known as the "Super Committee" or "supercommittee." The Super Committee was formed through the debt ceiling deal reached in early August as the vehicle to identify at least $1.5 trillion in deficit reduction measures over the next ten years. The Super Committee is supposed to propose recommendations by November 23, and Congress will have a month to hold a straight up-or-down vote on its recommendations. If the Super Committee fails to reach an agreement, then under the debt ceiling deal, we'll see $1.2 trillion in automatic, across-the-board cuts.

I wrote my letter in response to a proposal submitted to the Super Committee by the AMA and other medical groups. They've urged the Super Committee to include a federal tort reform law similar to H.R. 5, the "HEALTH Act" introduced to sharply limit lawsuits against doctors, hospitals, drug and device manufacturers, health insurance companies, and nursing homes. "Big Medicine" continues to seek partial immunity from negligence and deadly errors through federal law, just as they sought to expand their patient base by pushing for ObamaCare. As I've written here many times, ObamaCare and federal tort reform laws suffer from the same deficiency: both are an unconstitutional abridgment of states' and individual rights, based on an dangerous interpretation of the Commerce Clause that would enable Uncle Sam to run our lives. Additionally, imposing federal limits on health care-related lawsuits won't make a dent in the federal budget deficit. Here are selections from the opening paragraphs in the letter:

I want to express strong objections to any proposal to include severe limits on health care-related lawsuits in your deficit reduction recommendations. First, such a proposal is unconstitutional as an abuse of the limited powers enumerated for the federal government in the Constitution. Federally imposed lawsuit limits would violate the right of each state to run its civil litigation system. Second, estimates by the Congressional Budget Office of "savings" as a result of the imposition of such limits are highly suspect and therefore should be ignored.

This year, a clear consensus has developed against federally imposed limits on health care-related lawsuits on constitutional grounds, as expressed by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Tom Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. A lengthy discussion of the development of this consensus is instructive.

I then discussed the writings of all of those individuals and groups, all of which I have already posted here in my posts, Conservative Legal Experts Oppose 'Federal Tort Reform' and Even Tort Reform Proponents Oppose National Texas-Style Law.

I also discussed four deficiencies in the Congressional Budget Office's estimate of the budget savings that would result from federal limits on medical malpractice and other health care-related lawsuits. I posted about those deficiencies here in my post, Debt Reduction 'Supercommittee' Should Ignore CBO's Guesswork on 'Tort Reform'. CBO estimated savings of about $60 billion over ten years, which is less than 1/2 of 1 percent of the $1.5 trillion in the intended deficit reduction. In conclusion, I wrote, "Anyone betting on federal lawsuit limits to help us to balance the budget is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems."

You can download my letter to the Super Committee here.

Nina Shea, longtime advocate for religious freedom worldwide, has an important revelation today about the nature of the new Libyan government: it's biased against Jews. That's not a surprise to anyone who's watched Libyan politics over decades and witnessed the anti-Semitism of the Qaddafi regime. But this group of Libyan "rebels" was supposed to be "different," maybe even "democratic." Uh, NOT:

"Yesterday, Libya failed a critical litmus test on freedom when it blocked exiled Libyan Jew David Gerbi in his attempt to reopen Tripoli's synagogue and forced him to flee the country... Libya's quest for freedom this Arab Spring does not apparently extend to religious freedom or even mere tolerance of Jews. The reason lies in the state-supported anti-Semitism that became a dominant national ideology in post-independence Libya and was institutionalized under Qaddafi... Virulent anti-Semitism may be the one constant in revolutionary Libya. It remains deeply entrenched even within the rebel forces."

So much for Springtime in Tripoli. Nevertheless, the Obama Administration is still apparently hellbent to turn over all $30+ billion in frozen Libyan assets to the Libyan Jew-hating terrorists, while upwards of 200 American victims of Qaddafi's decades of terrorism - people with serious, lifetime injuries - get the shaft from their own government. They were promised in law that they would receive a certain amount of compensation from Libyan assets, their claims have been officially adjudicated as valid by the Justice Department, and now they're getting letters from the Treasury Department - OUR Treasury Department - saying that they'll receive 20% and leaving the remaining 80% out there somewhere in space. Wonderful. Numerous Congressmen and Senators have written letter after letter urging the President and Secretary of State Clinton to "fix this," but no one in Foggy Bottom wants to upset the asset freeze deal with our beloved European allies, let alone open their eyes to the reality of the Libyan rebel-terrorists, over the valid claims of a few dozen of our own citizens screwed by the same people who insisted that the victims' compensation fund would solve everyone's problems.

Sooner or later Congress will have to do its normal job of putting Americans ahead of Europeans and Libyans, and enact a bill that transfers enough of the frozen Libyan assets to the fund to pay all valid claims. On July 19, I posted about the precedent for doing that in a bill enacted in 2000 , and I attached this legislative proposal for anyone in Congress who can take the ball and run with it. I hope it gets done sooner rather than later.

I have an update on two cases about which I posted on September 27.

I was interviewed on the nationally syndicated "What's Up" radio program by host Terry Lowry about the action brought by the City of San Juan Capistrano, California, against Chuck and Stephanie Fromm for hosting a small home Bible study group in their home. During the interview, Terry and I discussed the centuries-old right, recognized now in the 7th Amendment to the Constitution, to sue the sovereign or Executive Branch to protect all of the God-given rights now protected in the Bill of Rights. "Tort reform" proponents who think that it's worth abridging our 7th Amendment right to benefit the business community ignore the fact that the Founding Fathers honored that right for cases involving religious liberty, property rights, and free speech, as well as for medical malpractice and products liability cases. You can download and listen to my interview.

Sen. Rand Paul announced that he'll hold a roundtable on Wednesday, Oct. 12, with "victims of the U.S. government's multi-pronged assault on private property rights." The list of victims includes Mike and Chantell Sackett of Idaho, who bought a plot of residential land to build a new home, only to be told by the EPA that their land was federal "wetlands." EPA refused to hear the Sacketts' appeals on the order, then challenged their constitutional right to file a lawsuit against EPA for injunctive relief. The Sacketts and their attorneys, the Pacific Legal Foundation, are taking their case to the Supreme Court this winter. I look forward to the roundtable and hope to see Sen. Paul start some legislative action to rein in EPA from squashing Americans' property rights. Here is the PLF's page on their website about the case.

Conservative legal expert Rob Natelson of the Independence Institute in Colorado, author of the book, The Original Constitution: What It Actually Said and Meant, was interviewed on October 6 on the nationally syndicated "What's Up" radio program, hosted by Terry Lowry. Rob Natelson was the first conservative legal scholar to forcefully argue that federally imposed limits on medical malpractice and other health care-related lawsuits are unconstitutional, back in April and again in May. Terry Lowry interviewed him about (1) the status of the anti-ObamaCare cases and the prospects for the Supreme Court to rule against the individual mandate, and (2) the unconstitutionality of federal tort reform laws. Natelson said that he expects the Supreme Court to hear the 11th Circuit case, and he put forth various scenarios for the Court's ultimate ruling (with no prediction). He added that Congress unconstitutionally stretched the Commerce Clause beyond all previous precedent in mandating the individual purchase of health insurance.

Natelson reiterated his opposition to federal tort reform laws. He said that this is another area where "the federal government simply has no business trying to impose one-size-fits-all on the entire country," that federal tort reform proposals dictating to federal and state courts are "extremely intrusive" and "pretty clearly unconstitutional."

You can download and listen to the entire interview.

The AMA and other medical groups have advised the Joint Congressional Committee on Deficit Reduction (the "supercommittee") that federally imposed limits on lawsuits over medical malpractice could save as much as $62 billion over ten years, citing the estimate provided last year by the Congressional Budget Office. Besides the fact that such limits are unconstitutional, but there are multiple deficiencies in the CBO estimate and reasons for the supercommittee to ignore that estimate.

First, as I wrote here on January 6, "The Congressional Budget Office has a long, inglorious history of large-scale, massive errors in its scoring of budget proposals." As economist Alan Reynolds warned years ago, the CBO not only has a lousy record of estimating ten-year budget deficits and projections of policy impacts, but it's missed often on just year-to-year projections. It's no wonder that House Majority Leader Eric Cantor accused the CBO of outright "budget gimmickry" in its calculations last year on the supposed "savings" that would result from ObamaCare, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, as attorney Brett Emison points out, CBO admitted last year that it did not "consider the effect of tort reform on patient health and medical outcomes. Remarkably, the CBO determined that 'many studies of malpractice costs do not examine health outcomes.'" As I wrote on January 14, implementing CBO's projection of "savings" of $54 billion could actually result in more deaths and injuries. CBO admitted in its estimate that limits on medmal lawsuits could "an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines." And another 400,000 or more patients could be injured during the same 10 years.

Third, the CBO can't estimate the impact that sweeping limits on medmal lawsuits would have on federal health care costs paid for by Medicare, Medicaid, and the Veterans Administration. If someone is brain-damaged, mutilated or rendered paraplegic as a result of medical negligence, but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn to those programs for compensation. None of these increased Medicaid or VA hospital costs are considered in the CBO estimate. Whenever there is a successful medical malpractice lawsuit involving an elderly or poor person, Medicare and Medicaid can claim either an interest in whatever the patient recovers, so the victim reimburses the government for some of the health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup. And none of these lost funds are considered by the CBO.

Fourth, CBO guesstimated that imposing federal lawsuit limits would result in a reduction in a drop in liability insurance premiums, but provided no raw data, explanations, or sources to back up its estimate. Numerous states have already imposed caps on medmal lawsuit damages, with no impact on personal health insurance premiums. CBO makes the same assumption that ObamaCare proponents made, that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out for us?

Anyone betting on federal lawsuit limits to balance the budget is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems.

An article in today's "Roll Call" newspaper, which covers Congress, discusses the extensive influence that Sen. Tom Coburn has over members of the debt reduction "supercommittee" charged with finding over $1 trillion in federal budget cuts ovr a ten-year period. It appears that Sen. Coburn's own "Back to Black" deficit reduction plan, which he released in July, is the basis for many pollicy proposals under consideration by the supercommittee.

That could be a positive development in the fight to protect each state's right under the 10th Amendment to the Constitution to run their own civil justice systems and each American's right under the 7th Amendment to seek a jury trial for civil suits, including medical malpractice lawsuits. Sen. Coburn's "Back to Black" plan doesn't call for unconstitutional federal tort reform in any way. Instead it relies on the states to manage their own legal systems, and specifically enables any injured patient to take a medical malpractice case to state court. Sen. Coburn also recognizes the terrible toll on patients as a result of deadly medical errors.

Sen. Coburn recommends that the federal government fund expert panels and health courts to resolve medical disputes, ideas implemented in some states and which do not, in practice, always protect a patient's rights. But it preserves the patient's right to access the state court system at any point; the state panels and health courts aren't a mandatory step. The Senator disagreed with federal tort reform solutions on constitutional grounds in an interview posted on June 30, and this plan is consistent with his objection. I'm not endorsing the plan, but at least it protects our constitutional rights from federal "tort reform" efforts.

In contrast, the American Medical Association and numerous medical groups are asking the supercommittee to squash our constitutional rights and grant total immunity to medical professionals from their errors. They sent a letter to the supercommittee that ignores the clear consensus against federal tort reform by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. Rolling over the Constitution and Bill of Rights is nothing new for the AMA and most of their fellow medical lobbying groups, the co-conspirators in the enactment of ObamaCare, with its equally unconstitutional individual mandate to buy health insurance.

The Founding Fathers' insistence on individual liberty and state sovereignty over their legal systems means nothing to "Big Medicine." They're the walking definition of "Crony Capitalism" for continuously lobbying for national health care with total civil immunity. Limits in the Constitution on the enumerated powers for the federal government, and the 7th and 10th Amendments, are mere bumps in the road for the AMA and their cronies, which wants to interfere in local health care and tort law decisions so they can shape and manage our lives. There's nothing "constitutionally conservative" about federal "tort reform" laws which would ignore the Founding Fathers, shut down local juries, and deprive Americans of our unalienable rights. The supercommittee should reject these blatant attempts by Big Medicine, and instead seek real reductions in the federal deficit.

A federal judge has ordered the EPA to pay $1.7 million to Hubert P. Vidrine for malicious prosecution. The conservative trial lawyers at the Washington Legal Foundation represented Mr. Vidrine in the lawsuit. You won't believe what the EPA tried to do to him (quoting WLF):

"The just-resolved case started in 1996 when the Environmental Protection Agency (EPA) ordered its SWAT-like special operations team (equipped with M-16 rifles and police dogs) to raid the Canal Refinery, Mr. Vidrine's workplace. The raid led to a criminal investigation against Mr. Vidrine for allegedly unlawful storage and disposal of hazardous wastes under the Resource Conservation and Recovery Act (RCRA). When asked to prove its case, the EPA turned to its star witness, Mike Franklin, who claimed he had taken samples of the allegedly hazardous material and had conducted tests proving Mr. Vidrine's guilt. The only problem is that neither Mr. Franklin nor the EPA could produce these tests.

Whoops.

With the credibility of the case already crumbling, it then came to light that Mr. Franklin suffered an addiction to cocaine, an addiction that often results in psychosis: loss of contact with reality, including false beliefs. Determined to press on, the EPA tried to prove its case by extracting truthful information from Mr. Franklin through hypnosis. But this too failed.

Seemingly oblivious to the evidence against his case, government prosecutor Keith Phillips pressed forward with such zeal that some people began to ask questions. These questions produced interesting answers: First, it was discovered that Phillips sought to prolong the case against Vidrine so he could continue his affair with the FBI agent assigned to the case (Ekko Barnhill) instead of returning home to his wife in Dallas. Second, Philips harbored a personal vendetta against Vidrine and seemingly wanted to do everything possible to make his life miserable. These motives fall a bit short of the 'pursuit of justice' that is supposed to guide EPA cases."

There's as clear a case of government abuse of process and violation of civil rights as you can find. And it's a great example of one of the reasons the Founding Fathers designed the civil justice system: to protect US from a power-hungry Executive Branch. The next time someone asks you for one good reason why we need civil suits and trial lawyers, remind them of this case.

Two important Republican leaders sent signs in the past week that they finally recognize that federal tort reform laws are an unconstitutional abridgement of the right to a civil jury trial and each state's right to run their own civil justice systems.

Rep. Paul Ryan gave an important speech recently at the Hoover Institution on his suggestions for reforming health care. I was pleasantly surprised to see him step back from his previous proposals for federal tort reform. In his Hoover Institution speech, he didn't mention limits on medical malpractice lawsuits or tort reform at all. Contrast this to Ryan's "Path to Prosperity," the basis of the House Republican budget resolution, which included caps on noneconomic damages from health care-related incidents. That proposal, the long-time centerpiece of the federal tort reform agenda, was condemned as "fair-weather federalism" by conservative legal experts, such as top anti-ObamaCare counsel Randy Barnett, and opposed even by two proponents of lawsuit limits, Walter Olson and Ted Frank.

Then former House Speaker and Republican presidential candidate Newt Gingrich released his new "21st Century Contract With America," with pages of new ideas for consideration by Republican voters. Early in his discussion of his legislative proposals, he states that replacing ObamaCare requires "lawsuit reform to stop the frivolous lawsuits that drive up the cost of medicine," repeating the myths perpetrated by medical groups to hide the cost of their own deadly errors and wasteful practices. But beyond that, he has no specific proposal, such as the unconstitutional "caps on noneconomic damages" cited by so many politicians. For Gingrich, who has been a longtime advocate of federal interference in state tort law, this is progress; it reduces the mention of "lawsuit reform" to the status of a throwaway line.

Too many wise conservatives who say they value the Constitution and Bill of Rights remain ignorant of the facts that (a) neither health care nor tort law are among the enumerated powers in the Constitution and (b) the Founders added the 7th and 10th Amendments as reinforcements against unlimited federal power. Maybe the silence of Rep. Ryan and Speaker Gingrich in their recent pronouncements are evidence that the facts are finally sinking in among Republican leaders out there on the campaign trail.

Today I read an outstanding post on the Injury Board Blog Network by Brett Emison of the Langdon & Emison law firm in Missouri, about the numerous state Supreme Courts which have struck down attempts to restrict the right to trial by jury as infringements on fundamental constitutional rights. The Injury Board's Tom Young and Brett Emison gave me permission to re-post it here. Here are the highlights, and I urge you to read the entire post:

Wisconsin: In 2005, the Supreme Court of Wisconsin held the state's $350,000 non-economic damages cap was an unconstitutional violation of the equal protection clause of Wisconsin's constitution. Ferndon v. Wisconsin Patient's Compensation Fund, 701 N.W.2d 440 (Wisc. 2005)...

Ultimately the Court ruled Wisconsin's cap was "arbitrary and create[d] an undue hardship on a small unfortunate group of plaintiffs." Id. at 466. There was no rational basis for this brand of "tort reform". The non-economic damage cap was not rationally related to any of the following:

-- Non-economic cap not rationally related to compensating victims fairly

-- Non-economic cap not rationally related to lowering medical malpractice insurance premiums

-- Non-economic cap not rationally related to maintaining the Wisconsin Patient's Compensation Fund

--Non-economic cap not rationally related to lowering overall health care costs for consumers

-- Non-economic cap not rationally related to ensuring quality health care

Georgia: Georgia passed its own "tort reform" legislation in 2005, also enacting a $350,000 non-economic damage cap. In a unanimous decision the Supreme Court of Georgia ruled that the "tort reform" legislation violated the constitutional right to trial by jury...

The Georgia Court found that the non-economic cap unconstitutionally infringed on the right to trial by jury because the cap arbitrarily disregards the jury's findings and undermines the jury's basic function. Atlanta Oculoplastic Surgery v. Nestlehutt, 691 S.E.2d 218, 223 (Ga. 2010). Moreover, the fact that the cap permits full recovery up to $350,000 cannot save the "tort reform" from constitutional attack...

The Georgia decision confirms that you can't violate the constitution "just a little". You either violate the constitution or you do not. An arbitrary reduction of the jury's award, no matter how small or what the amount, is an unconstitutional encroachment on the right to trial by jury.

Illinois: In 2010, the Supreme Court of Illinois struck down the Illinois non-economic damage cap as an unconstitutional violation of separation of powers. Lebron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010)... The separation of powers clause prohibits one branch of government from exercising powers belonging to another. The Court found that the cap duly encroached on the judiciary's "sphere of authority" and "impede[d] the courts int he performance of their functions." Id. at 909, 912.

Washington: In 2006, the Washington legislature enacted "tort reform" which required plaintiffs in medical malpractice cases to provide 90 days' notice of the plaintiff's intention to file a lawsuit. The Washington Supreme Court found the "tort reform" law to be an unconstitutional violation of separation of powers. Waples v. Yi, 234 P.3d 187, 195 (Wash. 2010).

West Virginia: Though West Virginia's Supreme Court upheld a $500,000 non-economic damage cap earlier this year, a powerful dissent by Judge Wilson illustrates why the Court got it wrong.

"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?

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.

This case is about what has already happened to the malpractice victims in the three West Virginia cases that challenged the constitutionality of the malpractice cap. These are real people who deserved more when they pursued justice in our West Virginia courts."

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it's not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

"Tort reform" protects and rewards negligent actors and makes us all less safe. It also undermines our most important constitutional safeguard. As the Georgia Supreme Court said, "tort reform" "clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function."

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

Tort "reforms" also have the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. Imagine someone is paralyzed by a defective product, a negligent doctor or a drunk driver. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff's actual life care needs. The bad actor is relieved of personal (or corporate responsibility) and the burdens of the bad actions are borne by taxpayers in the form of Medicare, Medicaid and disability payments.