Public Policy
KUFM Commentaries
Debunk the Myths - Facts on the Civil Justice System
KUFM has discontinued all its on air commentaries.
Most Recent Commentaries
Out of State Money In Montana Supreme Court Races, October 21, 2014
Gun Safety - Get Your Remington Repaired, September 23, 2014
Justice At Risk, August 26, 2014
Vilification Of The Comp Claimant, July 29, 2014
Corporate Religion, July 1, 2014
Court Secrecy Kills, Again, June 3, 2014
Federal Regulators – Whose Interests Do They Serve?, April 8, 2014
Civil Justice System - Protecting All Citizens, Even Hypocrites, March 11, 2014
Work Comp – You Can Help, February 11, 2014
Arbitration - Corporate Paid Umpires?, January 14, 2014
Holiday Cheer - Mandatory Arbitration Fixes? (December 17, 2013)
Supreme Court Fireworks (July 2, 2013)
What, Work Comp Rates Higher Than Promised? (August 2, 2011)
Oil, “Hot Coffee” and Independence (July 5, 2011)
Insurers Tightening Your Belt, And Picking Your Pocket (March 15, 2011)
Return Of The Copper Collar? (October 26, 2010)
Remington Under Fire
| 2014 2013 2012 2011 2010 2009 2008 2007 |
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| Commentaries 2013 Holiday Cheer - Mandatory Arbitration Fixes?, December 17, 2013 Supreme Court Fireworks – July 2, 2013 Balls and Strikes? - June 4th, 2013 Is Mandatory Arbitration Fair? - May 7th, 2013 |
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| Commentaries 2012 LR 119 – Rules and Numbers March 13, 2012 Independence From Corporate Tyranny? July 3, 2012 Defensive Medicine? July 31, 2012 Injured Patients the Cost of Rising Health Care Costs? August 28, 2012 What Corporations Want From Elections September 25, 2012 Gun Safety - Get Your Remington Repaired October 23, 2012 Holiday Safety November 20, 2012 Corporate Assault on Our Constitutional Rights December 18, 2012 |
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| Commentaries 2011 What, Work Comp Rates Higher Than Promised? (August 2, 2011) Oil, “Hot Coffee” and Independence (July 5, 2011) Litigation For Future Generations (June 7, 2011) VETO Acceptance of Medical Malpractice (May 10, 2011) Insurers Tightening Your Belt, And Picking Your Pocket (March 15, 2011) Work Comp Demise (February 15, 2011) |
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| Commentaries 2010 Liberal Ninth Circuit? (April 13, 2010) Oil Spills: Damage Caps Don't Work (June 8, 2010) Citizen Juries - Protecting Citizens And Congressmen (July 6, 2010) To Preempt State Laws Or Not, That Is the Question (August 3, 2010) Gun Safety - Fix Your Remington (September 28, 2010) Return Of The Copper Collar? (October 26, 2010) |
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| Commentaries 2009 | ||||||||||
| Commentaries 2008 Delay, Deny, Defend (January 22, 2008) Yes, Hunt Is A Trial Lawyer (February 19, 2008 ) Preempting Our Constitutional Rights (March 18, 2008) Justice Belongs To People (April 15, 2008) Preempting Our Safety (May 13, 2008) Founders Wary Of Corporate Influence (June 10, 2008) |
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Holiday Safety (November 27, 2007) |
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Asbestos Corporation Bailout (January 26, 2006) |
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Safety or Secrecy? (January 25, 2005) |
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Corporate Class Action Immunity - Deja Vu All Over Again (January 27, 2004) |
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Tort Reforms Protect The Powerful (January 28, 2003) |
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Medical Malpractice Insurance Crisis? (January 1, 2002) |
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Accountability and Responsibility (January 2, 2001) |
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Trial Lawyers Did It (January 4, 2000) |
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The Price of Health Care? (January 5, 1999) |
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Veterans' Day: We Won't Forget Our Debts (November 11, 1997) |
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Supreme Court Fireworks – July 2, 2013
With so many things happening in Montana and across the country affecting the civil justice system, I had a hard time picking a topic for tonight. The U.S. Supreme Court ended it's term in June with a bang. There was the Windsor case striking down the federal Defense of Marriage Act, and the Perry case that the Court sidestepped but in effect allowed the nullification of California's Propisition. The Court rejected a key provision of the Voting Rights Act in Shelby County, and sidestepped a decision on affirmative action, with indications that the law will change to strictly scrutinize racial classifications. Then there was the Bartlett case in which the Court expanded protections for the corporate makers of generic drugs. Let me see if I can tie them all together.
Thursday is Independence Day – the day we celebrate our declaration of independence from England. After securing independence, our founders set out to form a governing structure. They tried governing our new country under the Articles of Confederation, but found that a system of strong state powers and relatively weaker federal powers didn't work well. In 1787 our Constitution was adopted, to be ratified by the states in 1789 with the assurance that a Bill of Rights would be proosed and ratifed, and those first ten amendments were ratified in 1791.
One of our core constituional rights is embodied in the Fifth Amendment, which provides in part that no person shall be “deprived of life, liberty, or property, without due process of law” - often referred to as the Due Process clause. This amendment was in reaction to abuses by the sovereign.
In the Windsor case the divided Court found that a federal law that denied federal benefits to same sex persons married legally under a state's laws violated the Fifth Amendment. The majority in effect found the federal law to be an abuse of power by the sovereign.
When we bestow near diety status on the genius of our founding fathers, we tend to forget that in the Constitution black slaves were counted as three fifths of a person, of course that was only for tax and Congessional representation purposes. There was no need to protect slaves from being denied the right to vote – slaves couldn't vote.
In the voting rights case, upholding States' powers under the Tenth Amendment over individuals' rights to be free from racial discrimination under the Fifteenth Amendment, the majority of the Court decided 180 plus years of institutional racism has been eradicated in the past 50 years. As Justice Ginsburg noted in her dissent, the majority throwing out the preclearance part of the law “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Most of us remember our grievances that led to the American Revolution as being against King George. What most of us don't remember, or never learned, was that many of our grievances were with King George carrying out the bidding of the few corporations that dominated colonial America, like the East India Company – the original tea partiers threw its tea into Boston Harbor. In 1776 we declared our independence not only from British rule, but also from the corporations of England that dominated and controlled us, and extracted wealth from us.
Another of the rights insisted upon in order to assure passage of our constitution was the right to trial by jury in civil matters – the Seventh Amendment. It is the means by which we hold our government accountable. It also ensures that all men and women are entitled to a redress for wrongs done by others, including corporations. As John Adams once said about jury trials, "We have not envisioned a better fortification from being ridden like horses, fleeced like sheep, worked like cattle and fed like hounds."
There is more than a bit of irony that as we celebrate our independence this year, we are experiencing ever more of the corporate dominance that we rebelled against at our nation's birth. Our country's founders retained a healthy fear of the threats posed by corporate power and sparingly granted corporations a limited business role. As Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."
The moneyed interests of corporate power have been chafing at the reigns of the the civil justice system and the right to trial by jury since our country's inception. In the Barlett case corporate power won, again. The Court held that state laws could not be used to hold a generic drug manufacturer responsible for the harms its products cause. What harm? “Sixty to sixty-five percent of the surface of Karen Barlett's body deteriorated, was burned off, or turned into an open wound" due to the drug - too bad, too sad according to the Court's majority.
It seems the Windsor and Perry cases are exceptions to this Court's rule that government and corporate might rules.
It's hot and dry out there, please heed all fire warnings and have a safe and happy Fourth!
This is Al Smith for the Montana Trial Lawyers Association.
June 4th, 2013
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US Supreme Court's Balls and Strikes Count Last month I spoke about how mandatory, pre-dispute arbitration clauses in consumer and employment contracts can never be fair, because the parties do not have equal bargaining power, equal experience in arbitration, equal ability to understand contract language, particularly the ramifications of the rights being waived, and an equal ability to insist on clauses being included or excluded in the contract.
I gave examples of how the U.S. Supreme Court has failed to uphold an individual's right, under the 7th Amendment, to have civil disputes decided by a jury, instead it has sided time and again with corporations in upholding mandatory pre-dispute arbitration provisions. These included cases where state courts and U.S. Circuit courts have upheld consumers' rights, and the U.S. Supreme Court has sided with the corporation, leaving consumers with no recourse, and giving corporations an arbitration free pass – no accountability, unless someone is willing to spend more money than they could ever hope to recover.
The idea that the U.S. Supreme Court would side with corporate interests over individual's constitutional rights comes as no surprise to many of us who monitor Supreme Court decisions. But, if you are intellectually honest, you have to always question whether your conclusions are based upon your biased perceptions, or whether they are indeed based on facts.
So, are there any facts to back up the conclusion of many that the U.S. Supreme Court is, in political parlance, “business friendly?” Many of us perceive the court under Chief Justice Roberts, as allowing corporations to spend freely in elections, protecting corporations from class actions and human rights suits, and favoring arbitration over actions brought under the 7th Amendment as the way to resolve many disputes. For many, the perception is that these rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.
The 36 justices who have served on the court the past 65 years were ranked by the proportion of their pro-business votes. Current Justices Roberts, Scalia, Thomas, Kennedy, and Alito were in the top 10, with Roberts and Alito the two justices most likely to vote in favor of business interests of all those 36 justices.
The “business friendly” bent of the Roberts court is also found in looking at amicus, or friend-of-the-court, briefs filed in support of petitioners asking for Supreme Court review. SCOTUS BLOG contributor Adam Chandler found that in the past three years, pro-business groups accounted for more than 75% of the top 16 groups filing amicus briefs. The U.S. Chamber of Commerce was tops, and the most successful filer. Parties asking the U.S. Supreme Court to review their cases get their wish 1% of the time. Parties supported by a Chamber amicus brief asking for review get their wish 32% of the time. That's right, businesses with Chamber amicus support are 32 times more likely to get their case heard by the U.S. Supreme Court.
There is some hope with ending abusive mandatory arbitration provisions, and restoring Americans’ 7th Amendment rights. U.S. Senator Al Franken and U.S. Representative Hank Johnson have introduced the Arbitration Fairness Act of 2013. The Act would: eliminate forced arbitration in employment, consumer, civil rights, and anti-trust cases; ensure that the decision to arbitrate is truly voluntary; and, would restore fundamental rights created by state and federal constitutions and laws.
This is Al Smith for the Montana Trial Lawyers Association. Minnesota Law Review Study http://www.minnesotalawreview.org/wp-content/uploads/2013/04/EpsteinLanderPosner_MLR.pdf NYT Article - Corporations Find a Friend in the Supreme Court Review of Amicus Filings http://www.scotusblog.com/2013/04/cert-stage-amicus-all-stars-where-are-they-now/ Roberts Confirmation Statement Arbitration Fairness Act of 2013 (AFA) [S.878 / H.R.1844] |
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