
U.S. Constitution (source: Wikipedia)
I recently attended the Second Annual “Living Constitution” Lecture at the Brennan Center for Justice. The keynote speaker this year was Senator Sheldon Whitehouse and his topic was “Living Up to Our Constitution.”
Sen. Whitehouse identified four ways in which we live up to the Constitution, I am excerpting some of the best bits and breaking them into four separate posts for your contemplation this holiday weekend.
Part Three
Defending Our Courts
The third way in which we live up to our Constitution, is by upholding our court system. Sen. Whitehouse points out that the right to a day in court is guaranteed to us by the Constitution. His concern is that this Constitutional right is under assault by corporate defendants.
The Constitution mandates respect for the process that allows [injured plaintiffs] to stand up for their legal rights. Trial by jury is established in Article III, Section 2 of the Constitution, and by the Sixth and Seventh Amendments. The Constitution promises a “day in court,” however annoying that day might be to the corporate defendant.
-Snip-
For years, business interests, operating through the Chamber of Commerce and other “law reform” outfits, have mounted a public relations campaign against the civil justice system. Their tale is that discovery costs, juries, and punitive damage awards are all out of control, allowing unscrupulous plaintiffs’ lawyers to hold corporations hostage and extort massive settlements in a litigation lottery that frustrates public policy. Their goal is to make corporate defendants seem the victims, justifying mandatory binding arbitration (often with systematically biased arbitrators), caps on damages, restrictive readings of statutes of limitations, and heightened pleading standards.
How many times have you heard GOP talking points blaming the high cost of medical care on “trial lawyers”? How many times have you heard some winger shouting down the house about “tort reform”? Do you know what tort reform is? Pups, this is code for taking away your right to go to court if you are injured by a doctor’s malpractice, or a defective product, or the negligence or recklessness of another person or corporation.
FAUX News’ pundits rant and rave about out of control jury awards, but they always manage to skip over the part where there would have been no award of damages UNLESS THE DEFENDANT WAS FOUND TO HAVE DONE SOMETHING WRONG. In the guise of trying to fix some of the unintended consequences of the class action lawsuit rules, Big Corpa would take away the right to redress which goes back before the Constitution, before the Magna Carta, all the way back to before there was an England, back when that island was composed of smaller Anglo-Saxon kingdoms and established the practice of weregeld. The term originates from the Middle English word “were” meaning “man” (think “werewolf”) and the Saxon word “geld”, “gilt” or “geldt” meaning “money”. The concept was also used throughout the Scandinavian world and the Germanic world from at least the end of the Roman Empire. This has been a fundamental human right for millennia.
We live in a world where corporations are allowed (ahem) free speech rights in the form of large campaign contributions and soft money advertising campaigns, even if the views expressed are directly contrary to the views of their shareholders. Sen. Whitehouse rightly points out that the only branch of government where an ordinary citizen has any hope of making their plea in front of a decision maker who is not bought and paid for with campaign contributions, is before the jury box.
Corporations would be only too happy with a world in which their every contact with government officials – Presidents, governors, federal and state senators and representatives – every contact is with individuals and institutions who have been rendered supple to their interests by the emollient effect of corporate contributions. Against this lubriciously accommodating world stand the hard square corners of the jury box, filled with ordinary Americans, whose views you tamper with only at your legal peril, and before whom the mightiest corporation stands equal with its most humble and voiceless victim; where each party has equal opportunity to put its case to a group of our peers; where the status quo can be disrupted; where the comfortable can be afflicted and the afflicted find some comfort, all under the shelter of the law.
We stand up for the Constitution when we stand up for our courts.



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Well, I for one, am no admirer of the courts. They may be better than the alternative, but they often produce injustices, are economically unbelieveably inefficient, and the entity with the most power (or money)wins disproportionately. What’s to like?
This is a great series, Cynthia. Thank you very much.
Thank you Cindy.
Yeah, one of the big tricks of the “tort reform” crowd is artificial caps on punitive damages (I think they like to make the cap $250K – like that’s a “punishment” for a multi-billion dollar business.)
And your alternative is…?
Yeah…
The worst system, except for all the others…
Really enjoying this series – thanks Cynthia.
So one is not allowed to criticize unless one has an alternative?
Tort reform in and of itself will only do some much to ‘reform’ the healthcare system but make no mistake it is part of the solution and will save money if part of a comprehensive effort. And there are ways to get there without taking away a right to sue.
Of course left wingnuts refuse to acknowledge it but then again hypocrisy is as rampant amongst left wingnuts as it is with the right wingnuts.
Actually, I took his question seriously. Despite gross injustice that has been built into the system by political machinations over time, what would be your suggestion?
Tort reform, is, by any objective standard, the second great wish of those who oppose any actual reform of health care in this country. And you don’t have to be much more than an imbecile to understand the link between the two.
Not my field. I just observe what I observe.
And for anyone interested in what the Magna Carta really said and is all about, this article is just wonderful. http://bostonreview.net/BR28.3/linebaugh.html
A serious observation of questions. And, a great attitude, to boot!
The constitution is not working for the people. it has some good things in it, but it’s out dated and needs to be re written.
Corporations should have nothing resembling rights of a person – but they do.
We should not have an electoral college of a senate since they are not democratic.
Laws are for the little people not the powerful.
Utter nonsense. Tort reform does nothing of significance …. except prevent injured parties from suing for recompense for injury by the medical system. Look at California where ‘tort reform’ limited the damages one could get for ‘pain & suffering.’ Crap, my health insurance has gone up 13% (or more) each year for the past 10 years anyway. If someone cuts off the wrong leg, you’ll wish there were an attorney willing to represent you.
Excellent reference, Toby, thanks much for that.
And the Magna Carta is one of the justifications for a court system; how else does the law get applied, free of the political wrangling which comes from short-term roles as representatives or the executive? Without the role of the court as an arbiter, the law cannot be as Aristotle said, “reason unaffected by desire.”
One way I engage people who think PI or malpractice awards are too big: would you undergo the harm voluntarily in exchange for that amount of money?
The document still seems fresh to me, but it’s willful misapplication seems to be the thing that’s skewed in the system.
When, for instance, the Supremes designate corporations as persons, Madison and Jefferson would not be taken into account. And that is not their doing.
Isn’t it what you do best?
The Constitution was never for the people.
It is a list of prohibitions which restrain and restrict government. The problem is contemporary understanding of this fundamental concept.
The Constitution does not restrain people; only people have, through willful and corrupt misinterpretation of the Constitution. That corporations have become incorporeal persons was a gross error seized upon by the wealthy who owned corporations. Until there is an amendment which undoes that error, the courts will continue to interpret based upon precedent built upon this error.
This can be solved. The only thing we lack is political willpower to deal with this challenge.
My experience tells me there a more than several “critics” at this site. eCahn is more direct. Others use a lotta fancy words.
Hi Bev. How’zit?
Right on! And most of the blatherers have no idea that attorneys get paid from the ‘pain&suffering’ award because most people don’t have the cash to front a medical malpractice trial (with all the depositions, expert witnesses, jury fees, etc.) — attorneys have their own mortgages to pay and cannot work for free. If they cannot/will not be paid, they will not take the case. “The doctor left a trowel in you and you got sepsis? Are you a multi-millionaire who can provide a full retainer?” This is ALL about protecting the medical system from the injured parties.
But the court system has been neutered and skewed, as it were. White collar criminals winding up at Club Fed…, and justice mostly dependent on the depth of your pockets.
Let’s at least acknowledge the shortcomings of the de facto system, rather than applauding its virtual existence.
I like the way you said it.
You will get no argument from me that there are numerous flaws in the system, top to bottom. I think the banksters and con artist should all do hard time because of the destruction of lives that comes with their “white collar crime.”
What’s your alternative to the system we have?
Very well; we’ve had like spring…wonderful.
BTW..just ventured an observation…How are you?
Rayne, Never gonna happen.
I met a PI lawyer on the slopes many years ago and we skiied together for a couple of days. Stories that would make your hair turn white.
As long as a critical mass of citizens 1) feel that way, 2) fail to do more than the minimum required to keep and maintain a democracy, yeah, you’re right.
The biggest single problem — even bigger than any challenge our current system offers — is the apathy and lack of participation in the democratic (little d) process in the country. Until that turns around and people stop rolling over out of frustration and consumer contentment, well, you’re stuck.
I did PI law for years, and weep for us all given the attempts to limit help for the people. My hair didn’t turn white, but my attitude got pretty nasty! The folks who wail about need for tort reform have NO clue…..and obviously never got injured by someone else’s stupidity, negligence or cravenness.
I’m fine. Just watching.
Constitutional Convention!?, – Democracy!?!
Actually it’s probably the part of the legal system I like best because it’s just about the only area where the power imbalances have some chance to be addressed.
Added on edit: Of course, that exactly why it drives the Rs so nuts.
Law makers have made the laws so complicated – intentionally – that most people don’t begin to understand what is going on. The process is also very complicated and unless you are like the people at the Lake who stay on top of everything, it’s just too much work. It’s a shame. This should not have been done to the American people. The health care mess is a perfect example.
The irony is, that if you were a Republican in North Carolina, and your kid got hurt by corporate malfeasance, you would hire to sue the living shit out of the bad actors…
John Edwards.
Law industry is one of my 3 mafias of the intelligentsia.
Rayne is upstairs!
Howard Fineman: Now, With Less Actual Reading!
OK, how would you bring about a Constitutional Convention?
Um, yeah, I’m upstairs!
* runs up the back stair case *
Try living the rest of your life on $250K if you are injured and unable to work. Particularly if you need help to live.
That is so great….for a long time my hero was Jerry Spence. He took such great cases and really liked to teach young lawyers.
Hey, I’m able to separate someone’s moral ‘blips’ (as my ex-husband would have said) from their abilities in their profession. :)
Who air-brushed that picture? Give the guy a break!!!
In light of recent intrusions of the Catholic Bishops into Congress and the law; Has anyone given as much thought I have to the fact that SCOTUS ia on the verge of becoming totally Catholic? I think 6 now. Wonder what the Bishops are saying to them?
Yeah, I have a personal injury lawyer in the family, and their personal lives are quite detached from their professional acumen.
nuff said…
White colar criminals wend up at Club Fed because they do not present the same kind of supervision problems as inmates in facilites with greater security.
It costs a fourtune to lodge a felon in a maximin security prison. A minimum security prison is less expensice and easier to adminsiter. This is done for the conveninece of the Bureau of priusons and because resticitons greater than those necessary to maintian the prisoner in the facility (so he doesn’t escape, hurt himself or others, or get messages out to direct criminal conduct onthe outside)would constitute cruel and unusual punsihment
a damn good question, – yet, how are we going to keep our Republic, because it’s all going south right now?
well, fuck their convenience, because it grossly fails to account for moral hazard! Besides, why then do we not imprison petty thieves at Club Fed?
Anyone who thinks our court system is fair ought to take a look at how well rich defendants fare as compared to poor ones.
Our jails are filled with the poor and working class , people who can’t afford 20 or 30 thousand dollars to hire a lawyer to get themselves off.
Hi Cynthia. I’ve linked to this (and generally talked you up) over here.
Constitutional Convention is extremely dangerous at this time, with all of the special interests who might be able to exert influence. Furthermore, it would possibly result in secession, since the States are now far more diverse (I’m referring to the political views of the people) then they were before. There is no way heavily rural, small States in the middle of the country are going to tolerate giving up their crucial check on the coastal States by abolishing the Senate and Electoral College.
CA, NY, and a few other States would likely refuse to ratify a new Constitution if it preserves federalism (and its institutions like the Senate and Electoral College), because federalism effectively serves as a “check” on the amount of influence and power that CA and the Northeast can wield in a federal government. They would insist on “true democracy”, which of course would turn this entire federation of States into a single unitary (one piece) nation, where States are basically nothing more that geographic markers or counties with no sovereignty and self governance. This would be seen by rural, Midwestern, and Southern voters as “mob rule”, since most of the people live in just a limited number of large metropolitan areas, most of them along the coasts, and tend to have values that are sharply different from their own (guns, environment, religion, just to name a few). That would guarantee another Civil War, which would destroy the economy among other things (think about that for a minute… it’s not farfetched anymore).
Our country is simply too big and diverse for a “one size fits all” democracy, so rather, we should respect our regional and State to State differences by preserving federalism. Instead, we should focus our efforts on progressive reforms through Amendment that most Americans across the federation can agree upon… abolish “corporate personhood”, unchecked pay raises for politicians, term limits for them, balanced budget mandate, etc.
I’m no ‘winger’, but I am a fierce advocate of tort reform. I’ve endured many targetings and sightings by lawyers in my 20 year career. I was innocent in every single case. Yet, I had to spend my time and $$$ defending against absurd allegations that should never have been permitted to be filed. Many of my colleagues have had similar experiences. And, the system that you defend misses the majority of patients who have actually been injured from negligent care. See http://www.MDWhistleblower.blogspot.com under Legal Quality category
How about some specifics here, instead of poaching traffic with a blog link?
What do you suggest as effective measures to reform tort law?
I’ll be all for tort reform as soon as the medical community polices its own.
You lost me at “term limits.” We already have a mechanism for term limits. They’re called elections. In the areas and states that have instituted term limits, the resulting affect has been empowering unelected staffers and lobbyists as they are the only ones with the institutional memory of what has gone before. The elected officials are terming out by the time they learn how the system is working.
So if you are displeased with your elected representatives, then work to defeat them in elections. But the funny thing is, it always seems that folks aren’t really upset with their personal representatives; they’re upset with the other representatives who don’t vote the way we want them to vote.
Have you ever reported your colleagues for this negligent care? Do you refer the victims of the negligent care to an attorney that can handle their case?
Or do you just say “well, sux to be you, you shouldn’t have gotten sick/injured and needed the care?”
It may also be that you do have access through your malpractice insurance or personal resources that are not available to the average person seeking or needing redress for these wrongs. Money does have a tendency sometimes to walk all over the folks without money, no matter how righteous the non-monied folks cause may be. Using your moneys spent as an indicator that you had the funds to fight does not necessarily declare that those cases filed against you were without merit. It just shows you had the resources to fight that might not have been available to the plaintiffs.
Interesting that Senator Whitehouse would comment on obeying the Constitution when he is criminally guilty of not obeying it himself. In sum, the senator, along with the rest of Congress, has refused to obey the Constitution and has so asserted this in a federal lawsuit. According to his own attorney of record, this is a criminal violation of his oath of office.
The violation is the refusal of Congress to call an Article V Convention when mandated to do so by the Constitution. All 50 states have submitted 750 applications for an Article V Convention. Under the terms of Article V, Congress must call a convention. The texts of the applications can be read at http://www.foavc.org as can details of the lawsuit at FAQ 9.1.
Therefore discussion that a convention should not be held basically is a discussion that the Constitution should not be obeyed and should be rejected. Whether or not it is politically “safe” to hold a convention should not be the determining factor. What should be the determining factor for those who really believe the Constitution should and must be obeyed is the only factor that can be considered. All other positions are simply showing those making them are constitutional hypocrites.