At the tipping point: Have our rights to trial by jury been taken away?

Last night’s HBO premier of Hot Coffee, The Movie provided a great summary of all the ways in which the U.S. Chamber of Commerce, large foreign corporations, and political operatives have banded together to end the right to trial by jury. Filmmaker Susan Saladoff did a masterful job of showing how deliberately falsified talking points, loaded memes, anti-consumer legislation, court packing, and forced mandatory arbitration have been used to deprive consumers of their rights to trial by jury.

Things have only gotten worse since production of Hot Coffee. As I have noted previously, the U.S. Supreme Court rendered two pro-business/anti-consumer opinions this term. This one makes consumer class actions even harder to maintain, and this one makes forced mandatory arbitration even harder to avoid. The picture painted by by Susan Saladoff’s brilliant film gets more finely defined by the Supreme Court’s recent term.

At home, I watched Hot Coffee with my beloved, who has been my biggest supporter for all of the years I have struggled to do what is right for consumers in our civil justice system. She also took me to task over language in my recent blog posts–she’s something of a message genius. She points out, correctly, that I must stop using the language and the memes of the corporate shills who seek to corrupt the civil justice system.

Okay my beloved. You win. I will listen to your wise counsel. So no more use of their memes, talking points and phrases.

Instead, let’s focus on what they have done. Through a deliberate campaign hatched by the cynical pro-corporate strategists, our precious right to trial by jury hangs on the edge.

They cannot accept a justice system that grants consumers and ordinary citizens the power to call corporate wrongdoers to account. They cannot allow the rest of us to have access to justice.  By a cold and deliberate strategy, they have simply chosen to nullify the Seventh Amendment, in order to eliminate consumers’ rights to trial by jury.  The question becomes whether we allow this to happen or fight back to protect our rights.

One of my heroes, Erin Brockovich, pointed out long ago that the problem with giving up constitutional rights is that they are gone forever. The right to trial by jury protects us from government abuse and from corporate misconduct. It looks to me like we are in fact tipping back, and consumers are beginning to to understand the importance of these issues. We can only hope.

 

Interesting: Souter takes on originalists at Harvard

For those who watch the U.S. Supreme Court, a theory of constitutional interpretation–so-called “originalism”–is now in vogue. The theory, which is often mouthed by politicians, suggests that the only way to interpret the U.S. Constitution is to look at what the founders wanted and thought and felt back when they wrote the document.

It’s got simplistic appeal, even if it’s a fairly goofy notion. It’s goofy, in that history is rarely anything if not subjective, such that anyone who claims to know what the founders thought centuries ago is necessarily guessing. Sometimes it’s an educating guess, but it’s a guess all the same. As well, it presumes that all should be set in stone, without considering the tremendous changes brought over the centuries by technology, population growth, culture and the like.

Maybe I can explain what I mean better by asking this simple question: What would Thomas Jefferson or James Madison have thought about Google? Originalists claim to be able to apply the founders’ intentions to free speech issues in the Google-era. I think that’s fanciful at best. “My answer, for what it’s worth, is, “Who knows?!”

Originalist thinking seems to go beyond constitutional adjudication. For that reason, the airy concepts are more important to consumers than we might realize.

So all of that is background for big props to CBS legal correspondent Andrew Cohen, a Twitter friend, who wrote this thoughtful piece on Justice Souter’s commencement speech at Harvard. Justice Souter, who retired recently, takes a reality-driven view of the constitution. He understands that much of work of constitutional interpretation is difficult because the values embodied in the constitution co-exist in tension. That tension creates ambiguity, which is necessarily at odds with originalists and sound-bite politicians whose world is black and white.

I’m a fan. If the U.S. Constitution and the Supreme Court matter to you, it’s worth a read. Hats off to Andrew Cohen for noting and explaining what many of us missed.

Addendum: Link to the text of the Souter speech…I would credit a particular Philadelphia rock star lawyer who passed it along, but that would be wrong for reasons I can’t begin to explain.

Constitutional challenge to health care reform-good luck with that

It took less than 24 hours for various states’ attorneys general to start the saber rattling. Apparently,  at least 10 states are lining up to litigate constitutional challenges to the historic passage of health care reform.

The talking points memo was apparently released early. My understanding from a casual review of the media stories is that various challengers claim that Congress lacks the power to require individuals to take actions to obtain health insurance.  The story goes that the Commerce Clause of the United States Constitution (“The Congress shall have power ****To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) does not allow Congress to require citizens to affirmatively act.

As I understand the argument, someone who doesn’t buy insurance isn’t affirmatively affecting interstate Congress. As a result, Congress has no power to regulate these non-actors  through federal legislation. Legal geeks know that the power to regulate interstate commerce is far-reaching. There are few limits on that power and very few acts that don’t otherwise impact interstate commerce.

So it’s an interesting theory. Novel, really. But wrong. People who don’t have insurance are only non-actors as long as they don’t seek medical care. But once they show up in an emergency room,  apply for benefits, or otherwise incur medical care costs, they are impacting interstate commerce. Thus, it’s facetious to claim that they are not affecting interstate commerce.

But there is a bigger technical problem here which each of these political attorneys general know. It’s such a big problem that it makes the mandate argument frivolous.  In order to pursue a claim, a party going seeking relief in court must be able to claim a real legal injury. The label in legal jargon is “standing.”  There is an awful lot of case law on standing out there. Much of it comes from environmental law with courts deciding who has suffered legal injury and who has standing.

As I understand it, the current version of the health care reform bill doesn’t mandate coverage until 2014. So no one has been injured yet.

Sorry cowboys, if you file the suit now, you won’t be able to establish legal injury or standing. And by the way, I’m sure all of you are very concerned about crowding the courts with frivolous lawsuits. And for all of the times you’ve denounced frivolous lawsuits, you would never, never, never file one yourselves.  Right?

The wisdom of requiring legal injury is illustrated by the opponents’ two-pronged approach to fighting health care reform.  At the same time that the GOP attorneys general are revving up the lawsuit teams, the Congressional republicans are yammering about a repeal.  They’re also laying plans to tie up the reconciliation bill in the Senate.  As it’s a long way until 2014, how can any court ruling made today be definitive?

This scenario potentially raises an interesting series of law-geek questions under the political-question prong of the abstention doctrine. I don’t have time to think about that on this busy day. And besides, you would have to be a serious law geek to be interested. And even if you were, you would probably want to read stuff by people much smarter than me.

In any event, if the courts will truly call this on the law and not take thinly-veiled political sides, this case gets flushed quickly at all levels. Of course the U.S. Supreme Court abandoned pretenses of deciding cases on legal principles. (See, e.g., Gore v. Bush)

I suppose the U.S. Supreme Court could change the law of standing to hear this premature challenge. That would lead to a radical new theory of standing. Radical changes to the standing doctrine would be a mistake because it would unleash a torrent of future litigation. You would allow all manner of excited people their day in court to litigate issues of what might happen four years from now. That would be a really bad idea.

I think the GOP AGs might want to think carefully about what they are doing. Or maybe they’re simply too desperate to reflect?