February 2011 Archives

On July 12 of last year, I wrote on the difficulties that the families of American servicemen and contractors in Iraq and Afghanistan have in exercising their 7th Amendment rights for injuries and deaths suffered by their loved ones at the hands of foreign contractors. U.S. courts have dismissed several lawsuits, including one filed by my clients, over a lack of in personam jurisdiction over the contractor. The courts have ruled that the contractor's receipt of U.S. government funds through a contract isn't, by itself, enough to trigger the "minimum contacts" needed to hold it accountable in a U.S. court.

My clients are the surviving family of Lt. Col. "Rocky" Baragona, who was killed on May 19, 2003, when a truck owned and operated by Kuwait & Gulf Link Transport Company (KGL) sliced across the highway and struck the Humvee carrying Col. Baragona. With no detailed investigation of the accident possible by the Army at the time, his grieving parents and siblings started their own inquiries into KGL's operation of the truck. After trying without success to obtain an apology from KGL, the family's attorney filed a lawsuit in federal court, citing KGL's millions of dollars in contracts with the Defense Department as a basis for jurisdiction. After first obtaining a default judgment against KGL for almost $5 million when it failed to respond to the complaint, the family saw its pursuit of justice blocked when KGL responded to the judgement by citing a lack of in personam jurisdiction, and then persuaded the judge to reverse the default judgment and dismiss the lawsuit. That dismissal was affirmed by the 11th Circuit Court of Appeals, and the Supreme Court denied cert in the case.

Fortunately, an independent commission became interested in this issue. The bipartisan Commission on Wartime Contracting in Iraq and Afghanistan was authorized by Congress to conduct oversight of all contractors operating in those two countries. The Commission studied the Baragona case and other instances of contractor-caused death and injuries, and yesterday issued an interim report today on its latest investigations, with the following findings:

The Commission has determined that claims against foreign prime contractors and subcontractors have gone unaddressed because the U.S. courts lack personal, as distinct from subject-matter, jurisdiction over the foreign defendants. Without establishing personal jurisdiction, attempts by the United States and other parties to recoup damages for civil contract claims and for private parties to recover on tort claims arising out of conduct related to government contracts are lengthy, protracted, and expensive for all parties involved. Foreign courts may be unavailable, unreliable, inconvenient, or otherwise unable to hear these claims.

The Commission recommended the following measures to Congress and the Executive Branch:

Make consent to U.S. civil jurisdiction a condition of contract award

Revise regulations and policies to:

▪▪ Require that foreign prime contractors and subcontractors consent to U.S. jurisdiction as a condition of award of a contract or subcontract.

▪▪ Require foreign contractors to register an agent in the United States to be responsible for receiving notice, summons, and other legal documents in connection with any legal actions against those contractors.

▪▪ Reduce the burden on smaller foreign contractors by limiting these requirements to contracts and subcontracts of $5 million or more. Exceptions should also be provided for foreign contractors participating in local-preference programs such as Afghan First and Iraqi First.

A bipartisan bill championed by Senators McCaskill and Collins to force foreign contractors to recognize the jurisdiction of U.S. courts eventually emerged from a Senate committee last year as S. 2782, the "Lieutenant Colonel Dominic "Rocky" Baragona Justice for American Heroes Harmed by Contractors Act." Senator McCaskill has re-introduced the bill in the new Congress. The bill won't help the Baragona family to hold KGL accountable, but it can prevent other such situations, so we hope Congress will enact the bill in this session.

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.

British Islamist extremist Anjem Choudary, who once said "the flag of Islam will fly over the White House," and recently called Americans "the biggest criminals in the world today," plans to bring his pro-sharia message to a rally near the White House on March 3. Choudary told a British newspaper that the rally will be "a call for the Sharia, a call for the Muslims to rise up and ­establish the Islamic state in America."

I wonder if Choudary would ever be willing to answer some questions about his beliefs and the real nature of sharia law, such as the following:

1. Does Choudary agree with the following statement from the Islamic legal manual "Umdat al-Salik": "When a child or a woman is taken captive, they become slaves by the fact of capture, and the woman's previous marriage is immediately annulled." Does he expect American Muslims to follow that practice when they establish their Islamic state here?

2. Does he endorse the ritual of gang rape of women in the name of sharia, committed in numerous Islamic countries around the world in this decade?

3. Does he expect that American Muslims will endorse wife-beating (Koran 4:34) and female genital mutilation, which is practiced throughout the Muslim world? Does he agree with top Islamic clerics in Denmark and Lebanon who recently stated that women who do not wear a headscarf are asking to be raped? Does he think that Lara Logan was "asking for it" when she entered the mob in Egypt, near a famous university where the anti-women tenets of sharia are taught and honored?

4. Does he demand that American Muslims adopt sharia and swear off the United States Constitution and Bill of Rights, including the rights to a jury trial for criminal and civil cases, and also to substitute the judgment of a local Imam during the trial for the Federal Rules of Civil Procedure and centuries of law protecting the rights of the accused? Does he expect Muslims here to form secret neighborhood courts, as they have in Europe and elsewhere, under which sharia justice will be imposed without regard to Constitutionally protected rights or the rule of law?

As a Catholic, I have to ask: Can you imagine if a group of American Catholics decided to call for "the establishment of a Papist state in America?" The mainstream networks would have us for lunch. But they're dead silent on the Choudary rally and on the ugly side of sharia. Choudary isn't kidding, though; he's even created a Shariah4America website, although he obviously doesn't know much about capitalism, since he misspelled the term. Americans who cherish fundamental liberties have to remove their heads from the sand and pay some attention to whackjobs like Choudary and the company they attract. It will be interesting to see if Choudary makes it across the pond and who joins him near the White House on March 3.

I think it's a violation of the 10th Amendment, and I don't believe the Federal Government has any more authority to regulate health care under the Commerce Clause than it does to regulate liability caps in states under the Commerce Clause.

That was Rep. Ted Poe, conservative Republican who represents the 2d District of Texas in the U.S. House. On his website, he describes him self as "a leading voice for Texans standing up for conservative principles, reducing the size of the federal government and promoting constitutional and individual liberties." Rep. Poe made these comments (page 87 of the committee's posted transcript, available in full here) during the first part of the House Judiciary Committee's consideration of H.R. 5, which would impose federal limits on lawsuits filed against a very broad range of "health care providers," including nursing homes, hospitals, drug and device companies, and doctors. Rep. Poe was reacting to Democrats on the committee who questioned whether H.R. 5 violates states' rights. Rep. Poe succinctly posed the issue that I've raised in a host of posts on the excessive use of the Commerce Clause to override unalienable rights protected in the Bill of Rights.

And clearly H.R. 5 does that. That's why Rep. Louis Gohmert, also from Texas, joined Rep. Poe in expressing strong reservations about enacting H.R. 5, without at least limiting its impact to federal courts. Unfortunately, they didn't question assertions by Democrats that imposing federal limits on federal health care lawsuits also infringes on the right to a jury trial for civil suits, which is enumerated in and protected by the 7th Amendment. But at least Rep. Poe raised a red flag. Sadly, the Judiciary Committee approved H.R. 5 over his objections, with just a promise by the committee chairman to add a states' rights amendment to the bill when it reaches the House floor. We'll see.

Real Tea Partiers, Constitutional conservatives, and principled Republicans should insist to their Congressmen that they not enact H.R. 5 or any bill which compromises our rights enumerated in the 7th and 10th Amendments.

By the way, here is the full quote from Rep. Poe, from which I took the sentence above:

And the concern I have is that one reason, two reasons I opposed the health care bill was I don't believe the Constitution, under the Commerce Clause, allows the Federal Government to control the nation's health care, besides the unconstitutional provision of the individual mandate requirement on Americans, and those are being litigated through our federal courts.

But now we're being asked to go ahead and control liability throughout the nation and not just in federal courts but in state courts. I have no problem with this amendment applying to state -- federal courts because we're supposed to control the federal courts, but when you go to state court, this bill or the legislation overrides a state constitution that prohibits caps in liability.

I got problems with that. I think it's a violation of the 10th Amendment, and I don't believe the Federal Government has any more authority to regulate health care under the Commerce Clause than it does to regulate liability caps in states under the Commerce Clause.

When he addressed conservatives at CPAC last week, Sen. Rand Paul discussed the abuse of the Commerce Clause is at the heart of the pro-tort reform movement, and which is on view again especially this week with the continued markup of H.R. 5 by the House Judiciary Committee. Here are Sen. Paul's comments:

Early on in my campaign I stopped by a book publisher in Shepherdsville, Ky. It's near Louisville. This book publisher had published Barry Goldwater's "The Conscience of a Conservative," the first edition... Barry Goldwater mentions one Supreme Court case in that book: Wicker v. Filburn, many know it. A farmer in California wants to grow 20 acres of wheat. The government says you can only grow 10 acres of wheat. He said, by what authority do you tell me this? And they say, the Commerce Clause, and he said, well, I'm not even going to sell the wheat. I'm going feed it to my cattle, and they say to him, well, by your inactivity, by not doing anything, can you indirectly affect the price of wheat, and they enforce this. That ruling was in the '40s. For 60 and 70 years now we've been working with this notion that the Commerce Clause says that our government can do anything. Until Obamacare came along.

They scoffed at us when we said it wasn't constitutional. Nancy Pelosi looked like a deer in the headlights; she couldn't believe that anyone would question the constitutionality. Judge Napolitano asked Representative Clyburn about the constitutionality and Representative Clyburn readily admitted, most of the things we do in Washington have no constitutional authority. It is amazing and appalling.

This Supreme Court case that will be more, about much more than health care. It's going to be about whether or not we believe that our government should be restrained by the Constitution. I think for 60 or 70 years we've been gradually going down this road of becoming more of a majoritarian rule, a democracy. Jefferson said democracy would be nothing more than a mob rule. Our Founding Fathers knew the difference between a republic and a democracy.

Our understanding of the Commerce Clause has become so broad that I often will say, if my shoes were made in Tennessee, they'll regulate my walking in Kentucky. Recently Senator Coburn in one of the committee hearings asked Elena Kagan, he said, well, do you think the government through the Commerce Clause could regulate you eat three vegetables a day? Her response was, yes. (Emphasis mine.)

Sen. Paul identified himself with a small but growing body of conservative thought that recognizes that the Commerce Clause has become a sledgehammer of excessive power wielded from Washington. As I wrote on January 13, Supreme Court Justice Clarence Thomas voiced his concern when writing a dissent to the Supreme Court's decision to not hear a case on point, in which the Commerce Clause was used as the basis to criminalize the purchase of body armor by those convicted of violent felonies. Wrote Justice Thomas, "Congress arguably could outlaw 'the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile onthe basis that the candy once traveled . . . to the store from Hershey, Pennsylvania.'.. The Government actually conceded at oral argument in the Ninth Circuit that Congress could ban possession of french fries that have been offered for sale in interstate commerce. Such an expansion of federal authority would trespass on traditional state police powers."

States' rights advocates are seeking more aggresive action to defend the 10th Amendment from the overreach of the Commerce Clause. The Tenth Amendment Center is trumpeting a new bill introduced in the Arizona state legislature which would attempt to nullify the Commerce Clause altogether. "If passed by the Arizona State Legislature and signed by the governor, SB 1178 will amend the Arizona Revised Statutes in order to provide that all goods grown, manufactured or made in Arizona and all services performed in Arizona, when such goods or services are sold, maintained, or retained in Arizona, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce." That's an amazing step, essentially an act of civil disobedience, and symptomatic of a rising tide of disgust over the loss of states' rights.

But it's not enough yet. A majority of Americans say that they don't want the Commerce Clause to be used as a basis to compel ObamaCare. But what many Americans, especially in the business community, still don't recognize is the abuse arising from the flip side of the Commerce Clause: the abuse of basic rights arising from applying the Commerce Clause to prohibit/pre-empt action by the states, to the point of abridging the right to civil jury trials (the 7th Amendment) and states' rights (the 10th Amendment).

No issue demonstrates the disconnect among mainstream Republicans than the medical malpractice movement, personified by H.R. 5, which would sharply limit all health care lawsuits (not just medmal suits) against a wide range of companies (not just doctors). When Rep. Hank Hohnson challenged Judiciary Committee Republicans to stand up for the 7th Amendment during last week's debate on H.R. 5, one Republican, Rep. Bob Goodlatte, asserted that the Supreme Court had already decided that there was no conflict, which was really a retreat to stare decisis. But most of the committee's Republicans wouldn't hesitate to override Supreme Court decisions counter to their views on abortion, prayer in public schools, and the "establishment of religion" clause. Movements like the Tea Party groups and the Tenth Amendment Center are all about overturning long-held political and judicial doctrines in favor of a return to Constitutional principles.

As long as H.R. 5 advances through the House, Republican leaders will be unable to claim that they're intent on curbing the Commerce Clause and on restoring the primacy of the Bill of Rights.

I've already posted and Tweeted this but decided to post it again as of today: 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 U.S.

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

On February 9, radio station KKHT, 100.7 FM in Houston, broadcast an interview of me conducted by Christian broadcaster Terry Lowry on his program, The What's Up Radio Program. Terry, a true believer in the importance of the unalienable right to a civil jury trial, interviewed me on the potential impact of H.R. 5 on the effort to hold doctors financially accountable for their malpractice. You can download the mp3 file of the interview here. Terry also interviewed me on February 1 on 7th Amendment history and current issues.

I am scheduled to be interviewed again on "The What's Up Now Radio Program" on Friday, February 11 and will post the interview file on the website.

I'm available for other interviews; just e-mail me.

I wrote on September 8 and on August 30 about the fact that under strict Islamic Shariah law, there are no juries for civil and criminal cases. And during the panel discussion on November 16 that I assembled on Capitol Hill, I discussed the lack of civil or criminal procedure or discovery under Shariah. It's a system that is not only un-Constitutional but anti-Constitutional, and it has no place in American jurisprudence.

So it's encouraging to see that states legislators are recognizing the dangers of Shariah principles and acting to prevent their use in state courts. The latest state to pursue the matter is South Dakota, where a bipartisan effort is underway to enact SB 201, which would, according to the Dakota Voice, "prohibit South Dakota courts from using dangerous foreign laws that deprive parties of the same fundamental rights granted under the constitutions of the United States and the State of South Dakota." State Senator Dan Lederman gets it right, saying, "Invoking Shariah law, in criminal and especially in civil cases, is a means of imposing an agenda on the American people while circumventing the US and state constitutions by using foreign laws which do not recognize our constitutional rights and liberties in US courts. It's a hostile foreign law that has no place in American courts." And he would know, since Muslim women are signing marriage contracts offered by the Islamic Center of Sioux Falls, where the mosque leader advised Muslim husbands whose wives are "disloyal" to "admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly)."

SB 201 proponents have assembled a group of cases to cite as rationale for state legislative action. In one Massachusetts case, Rhodes v. ITT Sheraton Corp, the Massachusetts Superior Court, the judge ruled that "Saudi Arabia was not an adequate alternative forum because the Plaintiff would experience severely restricted rights under the Shariah-based Saudi legal code" due to the following deficiencies in basic civil procedure (quoting from the case):

"The first significant drawback to trial of this case in Saudi Arabia is that plaintiff would not be permitted to testify... All parties are presumed to be prejudiced in favor of themselves and therefore are not considered to be reliable witnesses... Prevailing in Saudi Arabia would be even more difficult for plaintiff in light of the requirement that, '[i]n financial matters, a party must produce two male witnesses or one male and two female witnesses in order to prove a point.'...

Another disadvantage to a Saudi forum is that Saudi courts do not follow any uniform rules of procedure... Saudi Arabia does not offer parties the opportunity to be heard by a jury... a Saudi forum would deprive plaintiff of basic procedures which she expects to enjoy in a Massachusetts forum." (Emphasis mine.)

Nothing about Shariah jurisprudence is compatible with the United States Constitution and the Bill of Rights. Shariah means NO civil (or criminal) procedure, NO due process, NO discovery, limited eyewitness testimony, and most importantly, NO JURIES IN ANY CRIMINAL OR CIVIL CASE. State legislatures and Congress should mandate that courts not compromise our principles for Shariah, and also be very wary of recognizing foreign court decisions based on Shariah.

As readers of our Twitter feed know, the debate during today's consideration of H.R. 5, the "HEALTH Act," by the House Judiciary Committee turned towards protecting states' rights by limiting the scope of the bill. Rep. Hank Johnson, Democrat from Georgia, introduced an amendment to limit the scope of the bill to just health care suits filed in federal courts, thus protecting the state courts from being overridden through pre-emption. Two Texas Republicans, Ted Poe and Louis Gohmert, expressed support for the general idea of protecting states' rights. At that point, Rep. Johnson offered to withdraw his amendment if the committee would consider a states' rights amendment later in the legislative process, to which committee chairman Rep. Lamar Smith agreed. Chairman Smith later adjourned the committee with a commitment to revisit the issue before resuming committee consideration next week. (UPDATE: Here's a story from "The Hill" on the states' rights debate.)

EDIT, 2-10-11: Rep. Johnson also introduced the idea that H.R. 5 would violate the right to a civil jury trial, as protected by the 7th Amendment. Rep. Bob Goodlatte (R-VA) disagreed strenuously, asserting that the Supreme Court has already ratified the theory behind H.R. 5. Although he wasn't explicit, he must have been referring to the use of the Commerce Clause to pre-empt state law and court suits, and thus enable Congress to enact federal limits on all health care lawsuits, whether filed in state or federal courts. I hope that next week, some Judiciary Committee member reads the Founding Fathers' unambiguous quotes on the unalienable, God-given right to a civil jury trial and begins to question the nature and reach of the Commerce Clause. I have already addressed the potentially unlimited scope of the Commerce Clause and will do so again soon.

Readers and fans need to contact House Judiciary Committee Members right away and their own Congressmen to urge them to protect states' rights and state courts, and the right to a civil jury trial, by amending H.R. 5. You can access the list of Judiciary Committee Republicans on the committee website and then navigate to individual websites for contact information. You can also call the U.S. House switchboard at 202-224-3121, ask for a particular Congressman's personal office, and leave a message. Congressmen pay the most attention to comments from those living in their districts. All 7th and 10th Amendment advocates need to hurry, before opponents of any states' rights' amendments mobilize to persuade committee Members to abandon Constitutional principles.

Tomorrow, the House Judiciary Committee will debate and vote on H.R. 5, the "HEALTH" Act, which would institute federal controls for the first time on lawsuits filed for health care injuries and deaths. In this post I want to focus on one aspect of the bill: a federally imposed limit on certain wages earned by lawyers. to be enforced by federal judges. To my knowledge, nothing like this has ever been imposed by Congress on the legal profession. It's also an indirect way of silencing the 7th Amendment right to a civil jury trial through a defunding mechanism.

Section 5 of the bill imposes the following limits - this would be FEDERAL LAW - on the contingent fees that a lawyer can charge his client for services in connection with a health care lawsuit:

(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.

And the bill authorizes federal judges to reduce the contingent fees by fiat: "In any health care law suit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants... (T)he court shall have the power to restrict the payment of a claimant's damage recovery to such attorney, and to redirect such damages to the claimant based upon the interests of justice and principles of equity."

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 - a bill pushed by REPUBLICANS - lets federal judges cut the contingent fees to be paid for any reason, with no real limit on a judge's authority.

This bill establishes federal wage controls on the legal profession, pure and simple. It's an extraordinary abuse of the Commerce Clause in the Constitution (from the same people who rightfully complain about ObamaCare's abuse of the same clause). It provides sweeping new powers to the federal judiciary. NONE of these impacts are "conservative" or "Republican." If those provisions in Section 5 are enacted, it will open the door to other federal wage controls on all legal services, and then on all services for which a commission is paid, such as by real estate agents. WHY would Republicans in Congress even consider federal wage controls on lawyers, after resisting them so strenuously on corporate executives during debate of the Dodd-Frank bill? WHY would Republicans in Congress want to give federal judges MORE power?

By the way, the bill will force federal judges to define and interpret the meaning of the phrase "health care lawsuit" and other new terms in the bill. What's "Republican" or "conservative" about that?

Two weeks ago, I discussed eight reasons why Tea Partiers and conservatives should reject this bill. Here is a ninth: Interference by the federal government with the wages to be paid under contractual arrangement to attorneys who represent victims.

P.S. I campaigned and worked for Ronald Reagan. Ronald Reagan would never have proposed wage controls on any sector of the American economy, and he would have vetoed this bill.

On November 20, 2009, 41-year-old Karnamaya Mongar made the wrong choice, a horrible decision that ended two lives that day. She chose to have an abortion at the clinic run by Dr. Kermit Gosnell in Philadelphia. Not only did Gosnell kill Mongar's unborn baby, but he butchered her so she experienced severe pain, then shot her up with so many pain-killers that she died on the spot. The city of Philadelphia finally realized what Gosnell and his untrained, unlicensed staff have been doing in his "house of horrors" and indicted them for allegedly murdering multiple women and live babies. Mongar's family hired a top-notch Philadelphia law firm and has filed a civil suit against Gosnell for medical malpractice.

But medical malpractice suits brought by families of other Gosnell victims could be severely limited in impact, and Gosnell allowed to keep much of his "blood money," if federal limits are imposed for the first time on medical malpractice suits. The bill designated H.R. 5 will be debated and voted upon next week in the House Judiciary Committee. It would sharply limit non-economic and punitive damages, so Gosnell wouldn't feel the sting of a jury verdict on his assets. And the bill would mandate that a jury sit there and listen to Gosnell as he tries to spread the blame for the deaths to his patients.

Ms. Mongar and the other women butchered in that clinic made the wrong decision, but that doesn't justify murder. My view as a pro-life Christian is that Gosnell and his staff deprived the dead women of the opportunity to reclaim their lives and repent for the sin of the abortion - they took that away from their patients. The babies Gosnell killed, born and unborn, cannot take his blood money away. Only the families of the women who were mutilated by Gosnell can ensure he is punished financially so he can't just access his assets someday and start over. Congress shouldn't protect Gosnell from justice, delivered by a local jury in a court of law.

A ruling today by U.S. District Court Judge Carl Barbier proves what victims of the unprecedented Deepwater Horizon spill have claimed for months: the so-called "independent" Gulf Coast Claims Facility is anything but a neutral arbitrator or mediator (download complete ruling here and here is a link to the AP story on the ruling). In fact, the judge ruled that "BP has created a hybrid entity, rather than one that is fully independent of BP" and "the GCCF and Mr. Feinberg are not completely 'neutral' or independent from BP." The judge cited the following facts in support of his conclusion:

1. "Mr. Feinberg was appointed by BP, without input from opposing claimants or the Plaintiffs' Steering Committee, and without an order from the Court."

2. "BP pays Mr. Feinberg and his law firm a flat fee each month, pursuant to a written contract which outlines his duties and responsibilities in great detail... This Contract is a private one between only BP and Feinberg Rozen, LLP-the United States is not a party to this Contract."

3. "BP decided the amount and manner in which it funded the GCCF through this trust agreement."

4. The GCCF "cannot reveal any confidential information relating to the GCCF without giving BP prior notice so that BP can seek a protective order; that all information gathered from claimants will be turned over to BP, with no restrictions as to its use." (COMMENT: The claimants have no right of prior notice and cannot protect their privacy.)

5. "BP will 'indemnify, defend, and hold harmless' Feinberg Rozen, LLP from and against any and all threatened or commenced actions . . . that are threatened, asserted, brought, commenced, or sought by any person or entity . . . relating to or arising from the operation of the GCCF."

6. "BP may choose to allow Feinberg Rozen, LLP to 'use and access certain of its computers, equipment, furniture, [and] properties.' as well as "use and access certain facilities, properties, and offices owned or leased by BP." (COMMENT: So Feinberg can use BP's gym?!)

7. "Under the Contract, BP retains the ability to audit Feinberg Rozen, LLP as long as the firm retains information about claimants." (COMMENT: The power to audit is the power to control.)

8. "In administering the GCCF, Feinberg Rozen, LLP agrees to comply with BP's Code of Conduct and to refrain from subcontracting its obligations without prior written approval from BP." (COMMENT: If I'm following someone else's conduct mandates, I'm the employee.)

9. "In their releases of BP, the GCCF requires claimants to release and assign all rights or claims not only against BP, but against any other potentially liable party. Whether or not seeking such broad releases is appropriate, the GCCF is clearly acting to benefit BP in doing so. BP may appeal an award of the GCCF if it exceeds $500,000; appeals are decided by a three-judge panel and are binding only on BP."

10. "BP does retain some degree of control of payments from the GCCF fund, as evidenced by recent media reports that the GCCF was ordered by BP to pay a $10 million business claim which had never been reviewed by the GCCF for merit."

Any normal person would describe this relationship between BP and the GCCF as that of a corporate parent to its subsidiary. That's why the court decided that "certain precautions should be taken to protect the interests of claimants," an extraordinary finding of a lack of confidence in Mr. Feinberg's ability to remain neutral in fact and appearance. "Any claim of the GCCF's neutrality and independence is misleading to putative class members and is a direct threat to this ongoing litigation," continued the judge (emphasis mine). The judge imposed six measures on BP, the GCCF, and Mr. Feinberg and his firm, including ceasing any warning to claimants that they shouldn't hire a lawyer.

Too often, the press treats Mr. Feinberg as if he is "forcing" BP to pay the thousands of Gulf Coast residents what's due to them. Actually, he's forced the victims to choose between their Constitutional right to sue BP in federal court or a final payment, determined in an arbitrary process with no appeal. The GCCF bears no resemblance to many of Mr. Feinberg's other mediations; the 9-11 Victims Compensation Fund was entirely a creation of federal law, and Feinberg was truly an independent arbitrator. The GCCF has been rigged to minimize BP's final payments to Gulf Coast residents.

Meanwhile the Senate has left the rig disaster victims out in the cold without their right to sue for non-economic damages, thanks to outdated federal laws enacted years before there were offshore oil operations. In contrast, the House recognized last July, by a unanimous voice vote, the reality of offshore oil rig and shipping accidents and allowed offshore rig victims to fully exercise their rights, just as oil rig workers hurt on land or in the air. The new Congress should enact a permanent fix to federal law to enable the victims to have their day in court.

On Tuesday, radio station KKHT, 100.7 FM in Houston, broadcast an interview of me conducted by Christian broadcaster Terry Lowry on his program, The What's Up Radio Program. Terry is a true believer in the importance of the unalienable right to a civil jury trial, as protected by the 7th Amendment, and knows the quotes of the Foundng Fathers supporting unhindered access to the civil justice system. We discussed the centuries-old history of the right, from back to Biblical times to the Magna Carta, through colonial times and up to today. We also discussed the relevance of the 7th Amendment in controversies such as the purchase of defective imported drywall and other consumer products. Terry conducted the interview in two segments and recored them in mp3 format. You can download Part I here, and you can download Part II here. I hope to appear again on "The What's Up Now Radio Program," and also look forward to other interviews soon.