legal
Return
to Common Sense
November 13, 2009
Section: Domestic – Legal
“Federal legislators have become disconnected
from their constituents, spending too much time in Washington, DC and have
become hopelessly disconnected from mainstream America.”
Philosophy (Background, Issues,
Objectives):
Legal
writing obfuscates meaning.
- Objective truth is not always the
objective.
- Laws must be interpreted by
courts.
- Obfuscation opens up for
unintended (or subliminal) consequences.
- Riders and amendments are
frequently tacked on to legislation to short circuit the review process.
Private
property is protected in the Constitution.
- 5th Amendment protects
private property from being taken for public use without just
compensation.
- Eminent domain is the acquisition
of real private property for the completion of a public project.
Government
officials have lost their credibility with the American public.
- Congressman and lawyers are
ranked very low in honesty and ethics.
- Congressional Record is a
rewritten history of what Members wanted to say.
- Presidential signing statements
have been used for 150 years to explain positions on the relevant issues.
Congress
works an abbreviated work week:
·
Congress
meets on Tuesday evening and full days on Wednesday and Thursday.
o Congress meeting on Monday or Friday
is an exception.
o Monday and Friday are reserved to
allow travel back and forth to home districts.
·
Congress
takes district work periods in March, May, June/July, August, and December.
- 44 states have laws that preserve
the traditional definition of marriage, with 8 more proposed.
- 18 states have passed
constitutional amendments protecting marriage, with propositions for 8
more.
- 16 states have proposed laws to
limit eminent domain and/or protect land use.
- Several states imposed term
limits upon both their constitutional officers and legislature
representatives, with 2 more states proposing term limits.
- There are 40 tax measures, with
proposition for Taxpayer Payer Bill of Rights in four states.
- A ban on racial preferences has
been added to the
Special
Prosecutors have been appointed to examine government misdeeds.
- A special prosecutor is a lawyer from outside the government to
investigate a government official for misconduct while in office.
- Special prosecutors have been
accused of partisan prosecution, driven by political agenda.
- Special prosecutor investigations
have been very expensive with minimal results.
Regulation
is a hidden tax on American consumers.
- CEI estimated that regulations
cost Americans $1.14 trillion annually in 2006.
o Code of Federal regulations reached
over 150,000 pages in 2005.
o The Federal Register report on new regulatory
actions rose to over 72,000 pages.
§
Since
1995 when the “small government Republicans” took over Congress,
51,000 rules and regulations have been added!
o Federal tax code covers 17,000 pages
and requires 700 different forms.
o FY 2008 budget calls for expenditures
on regulatory activities of $46.6 billion.
o FY 2008 budget requests level of
staffing on regulatory activities to be 251,595 FTE (3% increase).
o Regulatory costs absorb 9% of U.S.
GDP.
- In 2006 agencies reported on
4,052 regulations that were at various stages of implementation.
o Five most active rule-producing
agencies are: Treasury, Agriculture, Interior, Commerce, and Environmental
Protection Agency (EPA).
o Of the 4,052 regulations now in the
pipeline, 139 are “economically significant” rules that will have
at least $100 million in economic impact.
Tort
liability has added an expensive burden to industry.
- Estimated cost of tort
legislation was $252 billion a year, 1.8% of GNP.
o Our nation’s tort system is the
most expensive in the world and twice that of a typical industrialized nation.
o The indirect costs caused by excessive
litigation far outweigh the direct costs of paying attorneys and the occasional
jackpot justice verdict.
- Businesses incur non-legal
expenses to comply with the tort system, from document management
systems, to executive time lost in depositions and pretrial preparation,
to activities foregone because of legal risk.
- Businesses and individuals
change their behavior in inefficient ways because of the misaligned
incentives of the tort system.
o Features unique to the United States
raise costs astronomically, such as unbounded noneconomic damages; a broader
use of punitive damages; contingent fees of a percentage of recovery; the lack
of loser-pays system; extraordinarily broad discovery; class-action litigation;
and the use of speculative and nonscientific expert testimony in some state
courts.
o “American rule” requires each
side in a dispute must pay its own lawyers, regardless of the outcome.
- Medical malpractice cost has driven
doctors cost up and even from their profession.
- Excessive punitive damages have
driven companies out of business.
- Businesses routinely avoid
litigious opportunities.
- Inconsistent legal application
further confuses the law.
Class action
suits were designed to make legal system more accessible and less expensive.
·
The
class action lawsuit created a legal mechanism that allowed many plaintiffs
with similar claims to file one collective lawsuit.
·
Instead
of creating efficiencies in the lawsuit process, class actions have
increasingly been used as a weapon to extract mega settlements from businesses
that often must decide between the risky “bet the company” path of
a trial with a possible crippling jury award or agreeing to settle for a
certain amount.
·
Class
actions are one of the primary reasons tort costs amount to 1.9% of GDP in the
U.S. as compared to 0.5-0.7% in other OECD countries.
·
Lawyers,
however, make out very well, receiving much of the money consumers pour into
the class action system.
·
Often,
plaintiffs’ lawyers arrange settlements that provide for millions of
dollars in lawyers’ fees and leave the plaintiffs themselves with
relatively small awards, or in some cases, coupons for products or future
services from the very company by which they were supposedly wronged.
ACLU is
working to ensure the US government complies with universal rights principles.
- Constitution is “supreme
Law of the Land” and defines US civil rights.
- Human Rights Program filed
petition with Inter-American Commission appealing human rights.
- Supreme Court has included
international law justification for recent rulings.
Principles:
Over-regulation/over-legalization
has impeded growth and prosperity.
- Enforce or erase all regulations.
- Keep legal writing simple and
straight forward.
- Laws can legislate
morality.
No
piece of legislation may deal with more than one subject.
Recommendations:
Ensure Congress composed of citizen legislators.
·
Enact term limits for all federal political offices (12 years max).
o No more than two full four year terms (10
years max) for President.
o No more than five full two year terms (10
years max) for Congress.
o No more than two six year terms (12
years max) for Senators.
- Restrict lawyers from serving in office
in the legislative branch of government.
- Enact a lifetime ban on any
elected official at the state or federal level from ever being a
professional lobbyist.
Enable
Senators and Representatives to govern from their home districts.
- Each Member must certify that
they actually read and understand the proposed legislation.
- Enable electronic voting to allow
remote participation from their home district or state.
- Schedule five day workweek
enabled with remote voting access.
Authorize
a Presidential line item veto authority to limit “earmark” and “pork”
projects.
Strengthen
the Office of Information and Regulatory Affairs to scrutinize rules before
adoption.
·
Require
independent agencies to submit cost benefit analyses to OIRA for non-binding
review.
o
When a regulation will cost more than
$100 million to comply with, Congress should require a vote on the regulation
BEFORE it becomes binding.
·
Establish
a sunset date for all new federal regulations
Reform
tort system:
- Restrict compensation to real and
actual costs.
o Eliminate punitive (pain and
suffering) awards.
o Enact traditional English
Rule (“loser pays”) and require
litigants to pay costs of spurious law suits.
- Eliminate “scheme
liability” to expand plaintiff pools.
Restrict
eminent domain judgments to public projects.
References:
“Life Without Lawyers” by Philip K.
Howard published by W.W. Norton & Company, 2009.
Overlawyered chronicles high cost of our legal
system at http://www.overlawyered.com/ .
“Law is a Jealous Mistress” by
Bruce M. Selya delivered at Roger Williams School of
Law Commencement on
“Morality & the Law – A Joint
Venture in Logic” by Steve Farrell dated
“Resuscitating the Constitution” by
Michael Arnold Glueck and Robert J. Cihak dated
“The cost of the legal system” by
Bruce Bartlett dated
“
“Let’s Cap the Damage to the
Constitution” by Robert A. Levey dated
“Myths and lies on the record” by
John Stossel dated
“The threat of Bush’s signing
statements” by Thomas Mann and Norman Ornstein dated
“Lawsuits Make Us Less Safe” by
John Stossel dated
“ABAndoning the Constitution” by Craig S.
Lerner and Nelson Lund dated
“Who Are the ‘Progressives’ These
Days?” by Thomas Bray dated
“And body armor for all” by Paul
Jacob dated
“Voters as Legislators – Some
Considerations” by Marion Edwyn Harrison
dated
“The ACLU Shadow” by Joseph Klein
dated
“A Farce and an Outrage” by Mona Charon dated
“Five Day Workweek is Key to Restoring a
Vibrant Congress” by Norman J. Ornstein dated
“Economics and Smoking” by Walter
E. Williams dated
“
“Legal Sanity ‘Discovered’”
by Richard A. Epstein dated
“Divide and Litigate” by David B. Rivkin Jr. and Lee A. Casey dated June 13, 2007 published
by The Wall Street Journal Opinion Journal at http://www.opinionjournal.com/editorial/feature.html?id=110010198 .
“Growth in Regulation Slows” by
Jerry Brito and Melinda Warren dated
“A Federalist Approach to Malpractice Abuse”
by Fred Thompson dated
“Assaulting
“Ten Thousand Commandments 2007” by
Clyde Wayne Crews dated
“Can the Freedom Nexus Be Saved?”
by Tom Nugent dated
“Flying Blind in a Red-Tape Blizzard”
by Jonathan Rauch dated
“There Oughta Be a
Law” by Ken Connor dated
“A hard-knock life?” dated
“Enron: Extortion, Interrupted” by
Ted Frank dated
“The Lawyer’s Party” by Bruce
Walker dated
“Red Tape Rising: Regulatory Trends in the
Bush Years” by James L. Gattuso dated
“Bullies” by John Stossel dated
“Jump-Starting The Economy” by
Lawrence J. McQuillan and Hovannes
Abramyan dated
“Regulation Without Representation”
by Tom Purcell dated
“Common-Sense Justice in
“Winner Pays” by Christopher Orlet dated December 18, 2008 published by The American
Spectator at http://www.spectator.org/archives/2008/12/18/winner-pays .
“Move Washington to America” by
Bruce Walker dated February 14, 2009 published by American Daily at http://americandaily.com/index.php/article/615 .
“A Stimulus You Can Believe In” by
Ted Frank dated May 29, 2009 published by The American Magazine at http://www.american.com/archive/2009/may-2009/a-stimulus-you-can-believe-in .
“The American Export You Don’t Want”
by Lisa Richard dated June 9, 2009 published by Town Hall at http://townhall.com/Columnists/LisaARickard/2009/06/09/the_american_export_you_dont_want .
