Justinian Lane - Commentary on law, politics, and tort "reform."

There’s a Reason The 14th Amendment Didn’t Have A Trigger Option

I can say that I no longer give a damn about healthcare reform.  I no longer give a damn because I know that whatever we finally get will be a watered-down compromise that is more about ensuring that neither the Democrats nor the Republicans can be said to have lost the battle.  Both sides are of course under enormous pressure to deliver.  A loss for the Democrats will be seen (stupidly) as a referendum on Obama and the progressive movement, and a loss for the Republicans will be seen as a referendum on the GOP.  Both sides are so firmly entrenched that neither can afford to be said to have lost.  So both sides will deliver some bullshit compromise measure whose effects will be impossible to explain in one or two sentences.

The beauty of the 14th Amendment is that it is both incredibly complex and incredibly simple.  If you doubt the former, take a Con Law class.  And if you doubt the latter, remember that elementary school students are taught that the 14th Amendment abolished slavery.  Sure, that explanation leaves a lot out, but it explains perhaps the most important part of the Amendment.  The 14th Amendment is also beautiful because it neatly and cleanly accomplished what it set out to do.  There’s been a lot of peripheral litigation over the scope of the Amendment, but never any serious debate over whether it’s legal to own a slave in the U.S.

One has to wonder how effective the 14th Amendment would have been if instead it had been written as a trigger option.  Perhaps it would have required states to grant citizenship to a certain percentage of slaves by a certain date, and if those states failed to do so, then the 14th Amendment would take effect.  It could have left it up to the states to determine which slaves to grant citizenship to, and perhaps even let states define citizenship, thus allowing states to game the system by saying that “X percent of our slaves have been granted citizenship,” when in fact that grant of citizenship did not comport with the intent of the drafters of the 14th Amendment.  Can you imagine such a system succeeding?  Probably not if your definition of success meant that there would be zero slaves in the United States.

Similarly, any trigger option that leaves it up to the states (read: private insurance companies) to cover the uninsured will not succeed if you define success as meaning every U.S. citizen has healthcare coverage.

Instead of delivering legislation that is as clean and as effective as the 14th Amendment, Congress is going to deliver us a bill that will best be described as a kludge or a patchwork.  The 14th Amendment wasn’t a kludge and it wasn’t a patchwork.  There’s something else it wasn’t, too: a failure.  And a failure is what I predict this bill will be.

I think it’s funny that on the one hand the GOP yells and screams “listen to the doctors!” about medical malpractice reform.  But when they’re told that the majority of doctors support single-payer universal healthcare, well, it’s not so important to listen to doctors anymore.  The problem is fundamental.  Many people (like me) believe that every American, by virtue of being a citizen in the greatest country the world has ever known, has a fundamental right to medical care.  Others, (like most of the GOP) believe that no one has a fundamental right to healthcare and instead should have to work to pay for it.

Personally, I don’t understand why I don’t have to work to pay for the military that keeps me safe, the fire department that keeps me safe, and the police that keep me safe, but I should have to pay for my healthcare coverage.  If it’s the job of our government to keep us protected from being killed by terrorists, then why shouldn’t it also keep us from dying of preventable illnesses?  One preventable death is too many, regardless of whether it comes from a shoe bomb or poor prenatal care. 

At this point, all I hope is that the Democrats don’t decide to try and buy off Republicans by giving them tort reform.  Here’s what’s going to happen if they do: Within ten years, Democrats will no longer be able to count on the support of trial lawyers, because trial lawyers won’t be able to afford to donate.  Republican challengers will then take out vulnerable Dems, and once they own Congress & the White House, they’ll gut the portions of the healthcare bill that they didn’t like, and keep tort reform.  Hope the Dems keep that in mind…

Live in Abilene, Texas (or Taylor County)? Then Vote For Randy Crownover for Judge

I can honestly say that I wouldn’t be in law school if not for Randy Crownover.  I’ve known this man since I was 17 years old, and to say that he influenced my decision to become an attorney would be a comical understatement.  I remember a discussion we had when I was 17 or 18 years old about “the law.”  He described it to me with reverence and passion that I’ve never heard from another person.  I recently found out that Randy is running for Judge in the County Court at Law in Taylor County, Texas. 

From his website: 

In 1980, I called Abilene home and began the practice of law.  The most important quality I bring to my candidacy is 29 years of legal experience in trial litigation in the courtrooms of Taylor County and across the State of Texas.  There is simply no substitute to actually trying cases, year-after-year, case-after-case, to learn the law and to apply the law to the facts, thereby embedding the rules of the law into the mind, and making knowledge of the law “second nature.”  This is the point at which I find myself after 29 years of handling thousands upon thousands of cases in trial courts, appeals courts, bankruptcy courts, and  federal courts.

My legal experience is not limited to one branch of law.  My extensive legal experience encompasses each of the five primary areas in which your Judge of County Court-at-Law No. 2 must be well anchored: civil law, juvenile law, probate law, misdemeanor law, and JP and municipal court appeals.   Peoples' lives are depending on the knowledge and expertise of the judge, and learning while on the bench is not the place to start.  It is extremely important to elect a judicial candidate that is experienced in the complete jurisdiction of County Court-at-Law.  Your Taylor County Court-at-Law No. 2 holds concurrent jurisdiction in civil cases $100,000.00 or less, juvenile law governed by the Texas Family Code, probate cases moved from County Court, misdemeanor criminal cases, and appellate jurisdiction over Justice Courts and Municipal Courts cases as well as certain Administrative Law Review cases.  I have three decades of experience necessary in all these areas of law:

Source: Crownover for Judge – Experience

Randy is as fierce an advocate for his clients as any attorney I’ve ever met.  His advocacy, however, is tempered by his respect for the law.  In the time I worked with him, he always knew where the ethical line was, and he always steered clear of it.  Some people might call that risk-averse behavior.  I call it honorable behavior befitting a man who seeks judicial office.

I have recommended Randy Crownover to my friends and my family in Texas.  I would not have made that recommendation if I had any doubts about his ability, his temperance, or his talents.  I have absolutely no reservation in recommending Randy to the voters of Taylor County and of Abilene, Texas.  I know that the citizens of Abilene can count on Randy to fairly, impartially, and ethically administer justice if they choose to elect him to County Court at Law.

I only hope that if Randy is elected as judge, his schedule will permit him to travel to Michigan next year to attend my graduation ceremony.  Because it’s no exaggeration to say that without his guidance, support, and encouragement, I wouldn’t be here. 

Thanks, Randy.

Tort Reform Hypocrite Greg Abbott is at it again

Remember Greg Abbott? He’s the attorney general who made millions by suing a Texas homeowner.  Now he’s trying to deny access to the courts to someone else who got injured:

Attorney General Greg Abbott on Wednesday asked the Texas Supreme Court to throw out a lawsuit by Emmalene Rankin, who discovered a surgical sponge lodged in her abdomen 10 years and eight months after a hysterectomy.

The amicus brief, written by state Solicitor General James Ho, asks the court to support the Texas statute of repose, which places a strict 10-year deadline on filing a medical malpractice lawsuit.

"Our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not re-examine acts from the distant past that have long since faded from memory," Ho wrote.

Source: AG wants sponge suit dismissed; Sugar Land mayor robbed

This guy is a disgrace to the legal profession.

Why are my tax dollars being used to pay for an IP czar?

Considering all of the other problems facing the country, I’m just not very concerned about IP theft.

Victoria Espinel, a Washington consultant and former Covington & Burling associate, would be the federal government's first ever "intellectual property enforcement coordinator" if she is confirmed. Congress created the position last year, responding to concerns from filmmakers, music companies and other content producers about how to reduce copyright and trademark infringement, especially across international borders.

Source: Law.com - Senate Judiciary Committee Grills 'Piracy Czar' Nominee

There’s no greater heartache than having Glenn Beck outlive your child…

Victim In Fatal Car Accident Tragically Not Glenn Beck

Hat tip to my flappy-headed Canadian friend.  (And since this is from The Onion, expect profanity.)

Was Ayn Rand from Argentina? I ask because of Mark Sanford’s article…

Two thing jumped out at me.  First, why the hell is Newsweek publishing anything written by Mark Sanford?  Second, no wonder conservatives love Ayn Rand so much:

Ironically, as Heller's biography makes clear, while Rand's philosophy was based on the individual's absolute freedom, Rand herself exercised a dictatorial control over her followers. She would denounce anyone who expressed opinions even slightly diverging from her own. Her chief acolyte (and lover), Nathaniel Branden, once circulated a list of rules for Rand's inner circle to follow; one of them read, "Atlas Shrugged is the greatest human achievement in the history of the world"; another said, "Ayn Rand, by virtue of her philosophical genius, is the supreme arbiter in any issue pertaining to what is rational, moral, or appropriate to man's life on earth." For the leader of a group dedicated to human freedom, Rand didn't allow much of it around her. (Emphasis added.)

Source: Mark Sanford on Ayn Rand | Newsweek Books | Newsweek.com

That sure sounds like a lot of the conservatives I know…

Judge Joan Orie Melvin Reeks Of Hypocrisy

Look at this foolishness:

HARRISBURG -- Superior Court Judge Joan Orie Melvin launched an attack today on her opponent in the state Supreme Court race, Jack Panella, saying it was unethical for him to take large campaign contributions from Philadelphia trial lawyers, whose cases he rules on regularly.

"It's pay to play and it's justice for sale," Judge Orie Melvin, a Republican from Marshall, told reporters after today's meeting of the Pennsylvania Press Club, where she was guest speaker.

She said Judge Panella accepted $1 million in contributions from the Committee for a Better Tomorrow, a political action committee funded by Philadelphia trial lawyers.

Judge Orie Melvin acknowledged that she accepted $100,000 herself from that group, although campaign finance records show she actually received $125,000.

Source: Pa. Supreme Court candidate hits rival over contributions

I won’t even bother to point out how hypocritical it is to take $125,000 from someone and then criticize your opponent for taking money from them too.  OK, I guess I just did point that out.

But what I really wanted to point out is the whole “justice for sale” thing.  Defense lawyers are present in every case in which trial lawyers are present.  Is a judge selling justice if he or she takes money from defense lawyers?

What about insurance companies?  Here’s a little secret: If a trial lawyer files a lawsuit, there’s an insurance company that covers the defendant.  So insurance companies have just as much interest in “buying justice” as do trial lawyers.  Does Judge Melvin think it’s wrong for a judge to take campaign contributions from insurance companies?  I suspect not.

I’m very skeptical about judicial elections in general because so many people – plaintiff and defense lawyers, insurance companies, big companies – have the resources and motivation to try and “buy judges.”  But you can’t just say it’s wrong for a judge to accept campaign contributions from one specific constituency.  And it’s certainly wrong to say it’s wrong for your opponent to take money from the same constituency that you do.

Technorati Tags: trial lawyers,judicial elections,Judge Orie Melvin

Would you trust police officers to…

Judge other police officers in a police brutality case?  Or would you think that the bond that police officers share with each other would make them biased in favor of other officers?

If the idea of cops judging cops sounds bad to you, then perhaps you’d also oppose this:

WASHINGTON -- President Barack Obama's willingness to consider alternatives to medical malpractice lawsuits is providing a boost for taking such cases out of the courtroom and letting experts, not juries, decide their merits.

The idea of appointing neutral experts to sift malpractice facts from allegations appeals to conservatives in both political parties. They want to address medical liability as part of health care legislation that's now largely silent on the issue. Trial lawyers remain steadfastly opposed to curbs.

Source: New malpractice idea in health care debate - washingtonpost.com

Doctors, like police officers, are part of a brotherhood with strong bonds and long traditions.  One of those traditions is to back each other up.  Those of us who live in the real world know that police officers can and do lie to protect each other.  We also know that doctors do the same.  And if a given doctor won’t lie to protect a fellow doctor, that doesn’t mean he or she will be willing to rule against the same doctor. 

I submit that it will be close to impossible to find “neutral experts” to sit in judgment of a case.  Even if I’m wrong, all experts don’t see a case the same way.  If neutral expert A thinks that a doctor violated the standard of care, but neutral expert B does not, how are we any better off letting experts come to a decision than by letting lay jurors?  We’re not.  We’re going to get a verdict that is the product of compromise; baby-splitting.

What’s one of the fundamental instructions given to jurors?  Not to research the case on their own.  Why?  Because we don’t want them making decisions based upon evidence that hasn’t been shown to be relevant and reliable.  Try telling doctors to forget everything they learned in medical school and judge the case based only upon the evidence admitted in the case.  Another impossible task.

I’ve got a better idea.  If we’re going to overhaul the medical system, and we’re determined to change medical malpractice law, how about this?  We do a government-funded, single-payer medical system.  Everyone gets the same good level of medical care.  Those who want to purchase additional coverage (Cadillac plans) may do so.  In exchange, medical negligence lawsuits are eliminated in favor of a no-fault, workers-compensation-style system.  When a medical procedure has an adverse outcome, fault is no longer an issue, and doctors don’t have to be sued.  The only exceptions would be for gross malpractice, and the standard would be set high enough so that it would be a meaningful standard.

I love juries and jury trials.  But I for one would be willing to trade my jury rights away for such a system. 

Dear Trial Lawyers, Join This MoveOn Campaign To Kill the Chamber of Commerce

If you’re a trial lawyer, you know that the Chamber of Commerce is one of the major funders of the tort “reform” movement.  Where do they get those funds?  From member corporations.  Here’s your shot at kicking the Chamber where it hurts.  Check out the excerpt of this email I just got:

Why would a company like AT&T oppose solutions to global warming?

AT&T is a prominent member of the U.S. Chamber of Commerce, which just launched a $100 million campaign described as a "declaration of war on the White House." The Chamber is pouring millions into killing clean energy as well as health care reform.¹

Recently, an uprising of companies fighting back against the Chamber of Commerce has begun, led by companies like Apple, Nike, Johnson & Johnson, and GE.²

Can you call AT&T and urge them to quit the Chamber of Commerce? If you're a customer of AT&T, be sure to mention it when you call. Here's the info:

AT&T
(800) 355-9542

Then, report your call by clicking here:

http://pol.moveon.org/chambercalls/att.html?id=17578-5412807-VyoCnhx&t=4

I didn’t use to be nearly as passionate about climate change as I am about fighting tort “reform.”  Now, I’m seeing the strong connection between the two.  The more companies we can persuade not to support the Chamber due to its stance on climate change, the less money the Chamber will have to rape our court system.

Get cracking!

Technorati Tags: trial lawyers,tort reform,climate change,Chamber of Commerce

Bob Casey Understands Damage Caps

He certainly understands that $250,000 caps are a tasteless joke at the expense of the catastrophically injured.

“I don’t think the way to go is to limit the rights of Americans who are injured by negligent or intentional conduct,” Pennsylvania Sen. Bob Casey who is a member of the Senate Health, Education, Labor and Pensions Committee said Sunday on CNN’s State of the Union.

“A $250,000 cap on damages, in my humble opinion, is insulting to our system of justice,” Casey also told CNN Chief National Correspondent John King, “That is not justice as we have come to understand it.”

Source: CNN Political Ticker: All politics, all the time Blog Archive - Casey: $250K cap on malpractice damages ‘insulting’ « - Blogs from CNN.com

If you lost your legs due to the negligence of another, would you feel that $250k is fair compensation?

Technorati Tags: tort reform,damage caps,Bob Casey