Legal

Return to Common Sense

April 1, 2013

Section: Domestic – Legal

“Federal legislation has become too long, too cumbersome, and unreadable thus causing too many laws to be passed without understanding the implications.”

“Our constitution works. Our great republic is a government of laws, not of men.” Gerald R. Ford.

Philosophy (Background, Issues, Objectives):

Since its founding in 1974, the Congressional Budget Office (CBO) has produced independent, nonpartisan, timely analysis of economic and budgetary issues to support the Congressional budget process.

CBO analyses do not make policy recommendations, and each report and cost estimate discloses its assumptions and methodologies.
All CBO employees are appointed solely on the basis of professional competence, without regard to political affiliation.

The Office of Information and Regulatory Affairs (OIRA) is located within the Office of Management and Budget and was created by Congress with the enactment of the Paperwork Reduction Act of 1980 (PRA).

OIRA reviews Federal regulations, reducing paperwork burdens, and overseeing policies relating to privacy, information quality, and statistical programs.

Legal writing obfuscates meaning.

With more than 4,000 criminal offenses, this country in the throes of “over-criminalization” with everyone guilty of some offense every day.
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.

Federal law is a confused mess with the U.S. Code disorganized and unreadable.

In 1926, Congress adopted the U.S. Code as a framework for federal law.
Since 1947, Congress has been slowly, very slowly enacting parts of the Code, on a title-by-title basis, into law.

Out of the 51 subject-matter titles, 26 have been enacted as positive law which represents only one third of the volume of the Code.
The bulk of the Code is still not law and cannot be amended directly, forcing the bill-drafters to embark into a maze of hundreds of years of past individual statutes as they write the next unintelligible congressional bill.

Private property is protected in the Constitution.

5^th 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.

Conservative State ballot propositions have increased on issues not adequately addressed at the Federal level.

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 Michigan ballot.

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.

In 2009the GAO estimates an unprecedented 43 major regulations were imposed by Washington.

o The total cost of these 43 major regulations topped $26.5 billion, far more than any other year for which records are available.

o The Competitive Enterprise Institute (CEI) estimates the annual compliance costs fo all regulations to hit $1.187 trillion in 2009.

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.

§ In Texas, “loser pays” provisions allow Texas trial courts to compel filers of frivolus or legally groundless suits to pay “equitable and just” attorney’s fees and costs for defendants wrongfully hauled into court.

§ “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.

o In 2003 and 2005, Texas adopted medical malpractice lawsuit abuse reforms that within three years medical malpractice insurance premiums were reduced by 35%.

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:

Meltzer’s Laws of Regulation:

Lawyers and bureaucrats regulate, but markets circumvent regulation.
Regulations are static; markets are dynamic.
Regulation is most effective when it changes the incentives of the regulated.

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:

Short Term, Establish a Congressional Office of Regulatory Analysis (CORA).

Estimate costs and impact of major regulations that are pending.
Identify regulatory authority embodied in bills.

· Require a regulatory impact analysis for legislation similar to the existing requirement of a CBO score.

Protect 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.

· Require a sunset date for all new federal regulations

Expand Congressional Accountability Act to ensure all statutes and regulations apply equally to members of Congress and their staff:

Require enrollment in any federal health care programs.
Replace federal pensions program with defined contribution plans.
Forbid insider trading on non-public information or tipping others.
Forbid all future laws to include any special exclusions or provisions.

Reorganize, update, and enact the entire U.S. Code as law.

Use the easier to understand and easier to read presentation of the law.

Ensure Congress oversees the impact of legislation, under the Congressional Review Act:

Review the regulatory impact of legislative proposals and report on the cost and effectiveness of rules adopted by agencies.
Review, and when needed repeal, agency promulgated rules.

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.
Reform class action suits

o Require class members to affirmatively “opt-in” rather than affirmatively “opt-out.”

o Treat settlement and attorney’s fees as part of one recovery, with recovery total split.

Restrict eminent domain judgments to public projects.

Long Term, Restrict lawyers from serving in office in the legislative branch of government.

References:

“Life Without Lawyers” by Philip K. Howard published by W.W. Norton & Company, 2009.

“Why Capitalism?” by Allan H. Meltzer published by Oxford University Press, 2012.

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 May 18, 2002, published on Vote.Com.

“Morality & the Law – A Joint Venture in Logic” by Steve Farrell dated February 17, 2003 published by News Max at http://www.newsmax.com/archives/articles/2003/2/17/22054.shtml .

“Resuscitating the Constitution” by Michael Arnold Glueck and Robert J. Cihak dated July 30, 2003 published by Jewish World Review at http://www.jewishworldreview.com/0803/medicine.men080103.asp .

“The cost of the legal system” by Bruce Bartlett dated December 12, 2003 published by Town Hall at http://www.townhall.com/columnists/BruceBartlett/2003/12/12/the_cost_of_the_legal_system .

“America Mired in Morass of Laws and Regulations” by Radley Balko dated March 11, 2004 published by Fox News at http://www.foxnews.com/story/0,2933,113861,00.html .

“Let’s Cap the Damage to the Constitution” by Robert A. Levey dated July 31, 2004 published by Cato Institute at http://www.cato.org/pub_display.php?pub_id=2765 .

“Myths and lies on the record” by John Stossel dated May 31, 2006 published by Town Hall at http://www.townhall.com/columnists/JohnStossel/2006/05/31/myths_and_lies_on_the_record .

“The threat of Bush’s signing statements” by Thomas Mann and Norman Ornstein dated July 7, 2006 published by American Enterprise Institute at http://www.aei.org/publications/filter.all,pubID.24641/pub_detail.asp .

“Lawsuits Make Us Less Safe” by John Stossel dated August 9, 2006 published by Real Clear Politics at http://www.realclearpolitics.com/articles/2006/08/lawsuits_make_us_less_safe.html .

“ABAndoning the Constitution” by Craig S. Lerner and Nelson Lund dated August 10, 2006 published by Free Republic at http://www.freerepublic.com/focus/f-news/1681106/posts .

“Who Are the ‘Progressives’ These Days?” by Thomas Bray dated October 4, 2006 published by Real Clear Politics at http://www.realclearpolitics.com/articles/2006/10/who_are_the_progressives_these.html .

“And body armor for all” by Paul Jacob dated October 29, 2006 published by Town Hall at http://www.townhall.com/columnists/PaulJacob/2006/10/29/and_body_armor_for_all .

“Voters as Legislators – Some Considerations” by Marion Edwyn Harrison dated November 2, 2006 published by The Conservative Voice at http://www.theconservativevoice.com/article/19897.html .

“The ACLU Shadow” by Joseph Klein dated November 7, 2006 published by Front Page Magazine at http://www.frontpagemag.com/Articles/Printable.asp?ID=25312 .

“A Farce and an Outrage” by Mona Charon dated February 2, 2007 published by National Review Online at http://article.nationalreview.com/?q=NTEwNDc0MzdjYmU2OTk4MjM2MmQ2Njc4MzYyMDhmMjI= .

“Economics and Smoking” by Walter E. Williams dated March 14, 2007 published by Human Events Online at http://www.humanevents.com/article.php?id=19786 .

“Legal Sanity ‘Discovered’” by Richard A. Epstein dated May 24, 2007 published by American Enterprise Institute at http://www.aei.org/publications/filter.all,pubID.26242/pub_detail.asp .

“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 June 19, 2007 published by George Mason University Mercatus Center at http://www.mercatus.org/printVersion/print_pub.asp?pubID=4071 .

“A Federalist Approach to Malpractice Abuse” by Fred Thompson dated June 21, 2007 published by Town Hall at http://www.townhall.com/columnists/FredThompson/2007/06/21/a_federalist_approach_to_malpractice_abuse .

“Assaulting Liberty Through Regulation” by J.J. Jackson dated June 23, 2007 published by American Daily at http://www.americandaily.com/article/19347 .

“Ten Thousand Commandments 2007” by Clyde Wayne Crews dated July 3, 2007 published by Competitive Enterprise Institute at http://www.cei.org/gencon/025,06018.cfm .

“Can the Freedom Nexus Be Saved?” by Tom Nugent dated July 5, 2007 published by National Review Online at http://article.nationalreview.com/?q=NTNlY2RiYzEyN2MzYTlhYmMyZDM1NzFiMzRjMWMzN2Y= .

“Flying Blind in a Red-Tape Blizzard” by Jonathan Rauch dated July 13, 2007 published by National Journal at http://nationaljournal.com/rauch.htm .

“There Oughta Be a Law” by Ken Connor dated July 22, 2007 published by Town Hall at http://www.townhall.com/columnists/KenConnor/2007/07/22/there_oughta_be_a_law .

“A hard-knock life?” dated January 18, 2008 published by Star Telegram at http://www.star-telegram.com/225/story/418142.html .

“Enron: Extortion, Interrupted” by Ted Frank dated January 23, 2008 published by American Enterprise Institute at http://www.aei.org/publications/pubID.27402,filter.all/pub_detail.asp .

“Red Tape Rising: Regulatory Trends in the Bush Years” by James L. Gattuso dated March 25, 2008 published by The Heritage Foundation at http://www.heritage.org/Research/Regulation/bg2116.cfm .

“Bullies” by John Stossel dated April 9, 2008 published by Town Hall at http://www.townhall.com/columnists/JohnStossel/2008/04/09/bullies .

“Jump-Starting The Economy” by Lawrence J. McQuillan and Hovannes Abramyan dated April 11, 2008 published by Forbes at http://www.forbes.com/opinions/2008/04/10/tort-reform-growth-oped-cx_lmha_0411tort.html .

“Regulation Without Representation” by Tom Purcell dated August 8, 2008 published by Front Page Magazine at http://www.frontpagemagazine.com/Articles/Read.aspx?GUID=46649B60-D367-4383-9ECB-DB157F383B05 .

“Common-Sense Justice in Alaska” by Marie Gryphon dated October 28, 2008 published by National Review Online at http://article.nationalreview.com/?q=ODRmODkwZDMxMWFjN2UyYTQxMjJmNTMxOGE0M2NhN2E= .

“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 .

“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 .

“Red Tape Rising: Regulation in the Obama Era” by James L. Gattuso and Stephen A. Keen dated March 31, 2010 published by The Heritage Foundation at http://www.heritage.org/Research/Reports/2010/03/Red-Tape-Rising-Regulation-in-the-Obama-Era .

“The Rising Tide of Red Tape” dated August 23, 2010 published by The Heritage Foundation at http://www.heritage.org/Research/Reports/2010/08/The-Rising-Tide-of-Red-Tape .

“It Isn’t Insider Trading When Your Senator Does It” by Ann Woolner dated October 13, 2010 published by Bloomberg at http://www.bloomberg.com/news/2010-10-14/it-isn-t-insider-trading-when-congressmen-do-it-commentary-by-ann-woolner.html .

“Not Triangulation but Regulation” by Quin Hillyer dated December 2010 – January 2011 published by The American Spectator at http://spectator.org/archives/2010/12/16/not-triangulation-but-regulati .

“Why Congress Must Confront the Administrative State” by Robert E. Moffit dated April 2, 2012 published by The Heritage Foundation at http://www.heritage.org/research/reports/2012/04/why-congress-must-confront-the-administrative-state .

“Lawyers Panic Over Litigation Crisis of Their Making” dated February 13, 2013 published by Investor’s Business Daily at http://news.investors.com/ibd-editorials/021313-644374-lawyers-may-finally-realize-there-are-too-many-laws.htm .

“Fix the Law to Fix America” by Robert Potts dated February 22, 2013 published by American Thinker at http://www.americanthinker.com/2013/02/fix_the_law_to_fix_america.html .

“The Class Action Racket” by Lawrence W. Schonbrun dated April 1, 2013 published by American Thinker at http://www.americanthinker.com/2013/04/the_class_action_racket.html .