Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Saturday, May 30, 2015

Magna Carta: Eight Centuries of Liberty

June marks the 800th anniversary of Magna Carta, the ‘Great Charter’ that established the rule of law for the English-speaking world. Its revolutionary impact still resounds today, writes Daniel Hannan

http://www.wsj.com/articles/magna-carta-eight-centuries-of-liberty-1432912022 

King John, pressured by English barons, reluctantly signs Magna Carta, the ‘Great Charter,’ on the Thames riverbank, Runnymede, June 15, 1215, as rendered in James Doyle’s ‘A Chronicle of England.’ Photo: Mary Evans Picture Library/Everett Collection http://si.wsj.net/public/resources/images/BN-IQ808_MAGNA_J_20150529103352.jpg

Eight hundred years ago next month, on a reedy stretch of riverbank in southern England, the most important bargain in the history of the human race was struck. I realize that’s a big claim, but in this case, only superlatives will do. As Lord Denning, the most celebrated modern British jurist put it, Magna Carta was “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”

It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form. King John accepted that he would no longer get to make the rules up as he went along. From that acceptance flowed, ultimately, all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.

Magna Carta is Latin for “Great Charter.” It was so named not because the men who drafted it foresaw its epochal power but because it was long. Yet, almost immediately, the document began to take on a political significance that justified the adjective in every sense.

The bishops and barons who had brought King John to the negotiating table understood that rights required an enforcement mechanism. The potency of a charter is not in its parchment but in the authority of its interpretation. The constitution of the U.S.S.R., to pluck an example more or less at random, promised all sorts of entitlements: free speech, free worship, free association. But as Soviet citizens learned, paper rights are worthless in the absence of mechanisms to hold rulers to account.

Magna Carta instituted a form of conciliar rule that was to develop directly into the Parliament that meets at Westminster today. As the great Victorian historian William Stubbs put it, “the whole constitutional history of England is little more than a commentary on Magna Carta.”

And not just England. Indeed, not even England in particular. Magna Carta has always been a bigger deal in the U.S. The meadow where the abominable King John put his royal seal to the parchment lies in my electoral district in the county of Surrey. It went unmarked until 1957, when a memorial stone was finally raised there—by the American Bar Association.

Only now, for the anniversary, is a British monument being erected at the place where freedom was born. After some frantic fundraising by me and a handful of local councilors, a large bronze statue of Queen Elizabeth II will gaze out across the slow, green waters of the Thames, marking 800 years of the Crown’s acceptance of the rule of law.

Eight hundred years is a long wait. We British have, by any measure, been slow to recognize what we have. Americans, by contrast, have always been keenly aware of the document, referring to it respectfully as the Magna Carta.

Why? Largely because of who the first Americans were. Magna Carta was reissued several times throughout the 14th and 15th centuries, as successive Parliaments asserted their prerogatives, but it receded from public consciousness under the Tudors, whose dynasty ended with the death of Elizabeth I in 1603.

In the early 17th century, members of Parliament revived Magna Carta as a weapon in their quarrels with the autocratic Stuart monarchs. Opposition to the Crown was led by the brilliant lawyer Edward Coke (pronounced Cook), who drafted the first Virginia Charter in 1606. Coke’s argument was that the king was sidelining Parliament, and so unbalancing the “ancient constitution” of which Magna Carta was the supreme expression.
United for the first time, the four surviving original Magna Carta manuscripts are prepared for display at the British Library, London, Feb. 1, 2015.
United for the first time, the four surviving original Magna Carta manuscripts are prepared for display at the British Library, London, Feb. 1, 2015. Photo: UPPA/ZUMA PRESS

The early settlers arrived while these rows were at their height and carried the mania for Magna Carta to their new homes. As early as 1637, Maryland sought permission to incorporate Magna Carta into its basic law, and the first edition of the Great Charter was published on American soil in 1687 by William Penn, who explained that it was what made Englishmen unique: “In France, and other nations, the mere will of the Prince is Law, his word takes off any man’s head, imposeth taxes, or seizes any man’s estate, when, how and as often as he lists; But in England, each man hath a fixed Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law has imposed such a penalty or forfeiture.”

There was a divergence between English and American conceptions of Magna Carta. In the Old World, it was thought of, above all, as a guarantor of parliamentary supremacy; in the New World, it was already coming to be seen as something that stood above both Crown and Parliament. This difference was to have vast consequences in the 1770s.

The American Revolution is now remembered on both sides of the Atlantic as a national conflict—as, indeed, a “War of Independence.” But no one at the time thought of it that way—not, at any rate, until the French became involved in 1778. Loyalists and patriots alike saw it as a civil war within a single polity, a war that divided opinion every bit as much in Great Britain as in the colonies.

The American Revolutionaries weren’t rejecting their identity as Englishmen; they were asserting it. As they saw it, George III was violating the “ancient constitution” just as King John and the Stuarts had done. It was therefore not just their right but their duty to resist, in the words of the delegates to the first Continental Congress in 1774, “as Englishmen our ancestors in like cases have usually done.”

Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights. On the contrary, they were very clear that they were fighting for the privileges bestowed on them by Magna Carta. The concept of “no taxation without representation” was not an abstract principle. It could be found, rather, in Article 12 of the Great Charter: “No scutage or aid is to be levied in our realm except by the common counsel of our realm.” In 1775, Massachusetts duly adopted as its state seal a patriot with a sword in one hand and a copy of Magna Carta in the other.

I recount these facts to make an important, if unfashionable, point. The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.

When we call them universal rights, we are being polite. Suppose World War II or the Cold War had ended differently: There would have been nothing universal about them then. If they are universal rights today, it is because of a series of military victories by the English-speaking peoples.

Various early copies of Magna Carta survive, many of them in England’s cathedrals, tended like the relics that were removed during the Reformation. One hangs in the National Archives in Washington, D.C., next to the two documents it directly inspired: the Declaration of Independence and the Constitution. Another enriches the Australian Parliament in Canberra.

But there are only four 1215 originals. One of them, normally housed at Lincoln Cathedral, has recently been on an American tour, resting for some weeks at the Library of Congress. It wasn’t that copy’s first visit to the U.S. The same parchment was exhibited in New York at the 1939 World’s Fair, attracting an incredible 13 million visitors. World War II broke out while it was still on display, and it was transferred to Fort Knox for safekeeping until the end of the conflict.

Could there have been a more apt symbol of what the English-speaking peoples were fighting for in that conflagration? Think of the world as it stood in 1939. Constitutional liberty was more or less confined to the Anglosphere. Everywhere else, authoritarianism was on the rise. Our system, uniquely, elevated the individual over the state, the rules over the rulers.

When the 18th-century statesman Pitt the Elder described Magna Carta as England’s Bible, he was making a profound point. It is, so to speak, the Torah of the English-speaking peoples: the text that sets us apart while at the same time speaking truths to the rest of mankind.

The very success of Magna Carta makes it hard for us, 800 years on, to see how utterly revolutionary it must have appeared at the time. Magna Carta did not create democracy: Ancient Greeks had been casting differently colored pebbles into voting urns while the remote fathers of the English were grubbing about alongside pigs in the cold soil of northern Germany. Nor was it the first expression of the law: There were Sumerian and Egyptian law codes even before Moses descended from Sinai.

What Magna Carta initiated, rather, was constitutional government—or, as the terse inscription on the American Bar Association’s stone puts it, “freedom under law.”

It takes a real act of imagination to see how transformative this concept must have been. The law was no longer just an expression of the will of the biggest guy in the tribe. Above the king brooded something more powerful yet—something you couldn’t see or hear or touch or taste but that bound the sovereign as surely as it bound the poorest wretch in the kingdom. That something was what Magna Carta called “the law of the land.”

This phrase is commonplace in our language. But think of what it represents. The law is not determined by the people in government, nor yet by clergymen presuming to interpret a holy book. Rather, it is immanent in the land itself, the common inheritance of the people living there.

The idea of the law coming up from the people, rather than down from the government, is a peculiar feature of the Anglosphere. Common law is an anomaly, a beautiful, miraculous anomaly. In the rest of the world, laws are written down from first principles and then applied to specific disputes, but the common law grows like a coral, case by case, each judgment serving as the starting point for the next dispute. In consequence, it is an ally of freedom rather than an instrument of state control. It implicitly assumes residual rights.

And indeed, Magna Carta conceives rights in negative terms, as guarantees against state coercion. No one can put you in prison or seize your property or mistreat you other than by due process. This essentially negative conception of freedom is worth clinging to in an age that likes to redefine rights as entitlements—the right to affordable health care, the right to be forgotten and so on.

It is worth stressing, too, that Magna Carta conceived freedom and property as two expressions of the same principle. The whole document can be read as a lengthy promise that the goods of a free citizen will not be arbitrarily confiscated by someone higher up the social scale. Even the clauses that seem most remote from modern experience generally turn out, in reality, to be about security of ownership.

There are, for example, detailed passages about wardship. King John had been in the habit of marrying heiresses to royal favorites as a way to get his hands on their estates. The abstruse-sounding articles about inheritance rights are, in reality, simply one more expression of the general principle that the state may not expropriate without due process.

Those who stand awe-struck before the Great Charter expecting to find high-flown phrases about liberty are often surprised to see that a chunk of it is taken up with the placing of fish-traps on the Thames. Yet these passages, too, are about property, specifically the freedom of merchants to navigate inland waterways without having arbitrary tolls imposed on them by fish farmers.

Liberty and property: how naturally those words tripped, as a unitary concept, from the tongues of America’s Founders. These were men who had been shaped in the English tradition, and they saw parliamentary government not as an expression of majority rule but as a guarantor of individual freedom. How different was the Continental tradition, born 13 years later with the French Revolution, which saw elected assemblies as the embodiment of what Rousseau called the “general will” of the people.

In that difference, we may perhaps discern explanation of why the Anglosphere resisted the chronic bouts of authoritarianism to which most other Western countries were prone. We who speak this language have always seen the defense of freedom as the duty of our representatives and so, by implication, of those who elect them. Liberty and democracy, in our tradition, are not balanced against each other; they are yoked together.

In February, the four surviving original copies of Magna Carta were united, for just a few hours, at the British Library—something that had not happened in 800 years. As I stood reverentially before them, someone recognized me and posted a photograph on Twitter with the caption: “If Dan Hannan gets his hands on all four copies of Magna Carta, will he be like Sauron with the Rings?”

Yet the majesty of the document resides in the fact that it is, so to speak, a shield against Saurons. Most other countries have fallen for, or at least fallen to, dictators. Many, during the 20th century, had popular communist parties or fascist parties or both. The Anglosphere, unusually, retained a consensus behind liberal capitalism.

This is not because of any special property in our geography or our genes but because of our constitutional arrangements. Those constitutional arrangements can take root anywhere. They explain why Bermuda is not Haiti, why Hong Kong is not China, why Israel is not Syria.

They work because, starting with Magna Carta, they have made the defense of freedom everyone’s responsibility. Americans, like Britons, have inherited their freedoms from past generations and should not look to any external agent for their perpetuation. The defense of liberty is your job and mine. It is up to us to keep intact the freedoms we inherited from our parents and to pass them on securely to our children.

Mr. Hannan is a British member of the European Parliament for the Conservative Party, a columnist for the Washington Examiner and the author of “Inventing Freedom: How the English-speaking Peoples Made the Modern World.”

Friday, April 3, 2015

The Federal President would not stay in power if he did not talk human rights. So look at it as a political imperative.

Joe Biden on Human Rights
The Vice President tells China’s leaders to ignore the U.S.
WSJ, Apr 01, 2015

White House officials can be oddly candid in talking to their liberal friends at the New Yorker magazine. That’s where an unnamed official in 2011 boasted of “leading from behind,” and where last year President Obama dismissed Islamic State as a terrorist “jayvee team.” Now the U.S. Vice President has revealed the Administration line on human rights in China.

In the April 6 issue, Joe Biden recounts meeting Xi Jinping months before his 2012 ascent to be China’s supreme leader. Mr. Xi asked him why the U.S. put “so much emphasis on human rights.” The right answer is simple: No government has the right to deny its citizens basic freedoms, and those that do tend also to threaten peace overseas, so U.S. support for human rights is a matter of values and interests.

Instead, Mr. Biden downplayed U.S. human-rights rhetoric as little more than political posturing. “No president of the United States could represent the United States were he not committed to human rights,” he told Mr. Xi. “President Barack Obama would not be able to stay in power if he did not speak of it. So look at it as a political imperative.” Then Mr. Biden assured China’s leader: “It doesn’t make us better or worse. It’s who we are. You make your decisions. We’ll make ours.” [not the WSJ's emphasis.]

Mr. Xi took the advice. Since taking office he has detained more than 1,000 political prisoners, from anticorruption activist Xu Zhiyong to lawyer Pu Zhiqiang and journalist Gao Yu. He has cracked down on Uighurs in Xinjiang, banning more Muslim practices and jailing scholar-activist Ilham Tohti for life. Anti-Christian repression and Internet controls are tightening. Nobel Peace laureate Liu Xiaobo remains in prison, his wife Liu Xia under illegal house arrest for the fifth year. Lawyer Gao Zhisheng left prison in August but is blocked from receiving medical care overseas. Hong Kong, China’s most liberal city, is losing its press freedom and political autonomy.

Amid all of this Mr. Xi and his government have faced little challenge from Washington. That is consistent with Hillary Clinton’s 2009 statement that human rights can’t be allowed to “interfere” with diplomacy on issues such as the economy and the environment. Mr. Obama tried walking that back months later, telling the United Nations that democracy and human rights aren’t “afterthoughts.” But his Administration’s record—and now Mr. Biden’s testimony—prove otherwise.

Friday, November 29, 2013

Tesla Meets the Auto Regulators - Remember Toyota's invisible defect and drivers that are inordinately prone to "pedal misapplication"

Tesla Meets the Auto Regulators. By Holman W Jenkins 
The feds have opened a safety investigation into the Model S fires. Elon Musk should be worried.
WSJ, Nov 27, 2013
http://online.wsj.com/news/articles/SB10001424052702304465604579222051067101342

Look out, Elon Musk. Expecting rational results from regulatory agencies is often a recipe for disappointment.

Two of Mr. Musk's Tesla Model S cars burned up when road debris punctured the battery, a vulnerability not seen in other electric cars. Mr. Musk says his cars are no more fire-prone than gasoline cars. He claims to welcome a National Highway Safety Administration investigation into whether the cars are defective and warrant a recall.

Good luck with that. Mr. Musk is embroiled in a process that, he may soon discover, can quickly become more about politics than engineering. GM pickups with side-mounted gas tanks in the 1980s were necessarily more fire-prone in side collisions. Yet the truck's overall safety record was exemplary and the vehicle fully complied with federal fuel-system safety standards. That didn't stop the feds from eventually ruling the trucks defective, in response to over-the-top media and interest-group allegations against the company.


Those nearing ecstasy over the driverless car ought to sober up too. Tesla is not the only example of how unwelcoming our system of auto regulation is to new ideas. At a congressional hearing on the robotic car last week, a GM executive pleaded for "protection for auto makers and dealers from frivolous litigation for systems that meet and surpass whatever performance standards are established by the government." NHTSA's David Strickland was also present and seemed a lot more interested in extending his agency's remit to "things like, you know, navigation on an iPhone. . . . That is a piece of motor vehicle equipment and I think we have a very strong precedent."

And recall NHTSA's performance during the furor almost four years ago over alleged runaway Toyotas. Its then-overseer, Transportation Secretary Ray LaHood, happily participated in congressional hearings designed to flog for the benefit of trial lawyers the idea of a hidden bug in Toyota's electronic throttle control.

When the agency much more quietly came out with a report a year later debunking the idea of an electronic defect, notice how little good it did Toyota. The car maker still found it necessary to cough up $1.2 billion to satisfy owners who claimed their cars lost value in the media frenzy over a non-defect. Toyota has also seen the tide turning against it lately as it resists a deluge of accident claims.

At first, opposing lawyers were hesitant to emphasize an invisible defect that government research suggested didn't exist. That was a tactical error on their part. In an Oklahoma trial last month involving an 82-year-old woman driver, jurors awarded $3 million in compensatory damages and were ready to assign punitive damages in a complaint focused on a hypothetical bug when Toyota abruptly settled on undisclosed terms.

In another closely-watched trial set to begin in California in March, an 83-year-old female driver (who has since died from unrelated causes) testified in a deposition that she stepped on the brake instead of the gas. The judge has already ruled that if the jury decides to believe her testimony, it is entitled to infer the existence of a defect that nobody can find.

These cases, out of some 300 pending, were chosen for a reason. Study after study, including one last year by the University of North Carolina Highway Safety Research Center, finds that elderly female drivers are inordinately prone to "pedal misapplication." If Toyota can't prevail in these cases, the company might be wise to run up the white flag and seek a global settlement that some estimate at upwards of $5 billion—quite a sum for a non-defect.

Why do we mention this? These episodes describe the regulatory-cum-political thicket that Tesla wandered into when it started making cars. This thicket has served as a near-perfect barrier to entry to startup car makers for the better part of a century.

Even more so because Tesla's troubles come at a time when much bigger companies, with vast lobbying and political resources, are entering the market for high-end electric cars—including Cadillac, Porsche, BMW and Audi. Maybe this explains a note of hyperbole that has begun to creep into Mr. Musk's frequent blog postings. "If a false perception about the safety of electric cars is allowed to linger," he wrote last week, "it will delay the advent of sustainable transport and increase the risk of global climate change, with potentially disastrous consequences worldwide."

Federal regulators have been warned. They can always be denounced as climate criminals if they find the Tesla Model S defective. Maybe Mr. Musk is ready to play the political game after all.

Monday, October 28, 2013

When he was in power, he was unreasonable and arrogant and considered citizens' rights and the law to be nothing

Rejection of Bo Xilai's Appeal Concludes Chinese Drama. By Jeremy Page
'This Is the Final Verdict,' Court Says om Widely Expected RulingWall Street Journal, Oct. 25, 2013 9:51 a.m. ET
http://online.wsj.com/news/articles/SB10001424052702304799404579157354280260862



Edited:

Mr. Bo burnished his political reputation there by presiding over a sweeping campaign against organized crime that many lawyers and rights activists say disregarded legal norms and [other things we won't mention in this blog.]

"When he was in power, he was unreasonable and arrogant and considered citizens' rights and the law to be nothing," wrote Zhou Yongkun, a professor at Suzhou University's law school, on his microblog.

"As soon as he became a prisoner, he realized the importance of rights, and that the law was his umbrella. But it was too late."

Tuesday, August 27, 2013

Review of Thomas Healy's The Great Dissent

What Democracy Requires. By Joshua
Review of Thomas Healy's The Great Dissent
Justice Holmes changed his mind about free speech—and rediscovered the original intent of the First Amendment.
The Wall Street Journal, August 23, 2013, on page C5
http://online.wsj.com/article/SB10001424127887324108204579022881137648134.html

In the working sections of the Supreme Court building in Washington, D.C., the quiet places where the justices have their chambers and the staffs go about their work, portraits of the former members of the court peer out from almost every room and hallway. I used to find myself, when I worked there some years ago, pausing beneath the past luminaries and wondering what they might have to say about the court's current cases.

I never got very far with Oliver Wendell Holmes (1841-1935). His portrait didn't invite inquiry. He sat straight-backed in his judicial robes, his lips pursed beneath a virile white mustache, eyes boring directly ahead. He conveyed simultaneously grandeur and skepticism, as if he might interrupt you at any moment to say, "That's nonsense." This is Holmes in his Solomonic pose, the man hailed as the "Master of Sentences," lionized in an early biography as the "Yankee from Olympus," his life made the subject of a 1950s Hollywood film. It was an image that Holmes spent nearly the whole of his adult life cultivating, driven on by his galloping ambition. "I should like to be admitted," he told a correspondent in 1912, "as the greatest jurist in the world."

Holmes would surely have approved of Thomas Healy's "The Great Dissent." The subtitle conveys the narrative's gist: "How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America." Mr. Healy recounts Holmes's emergence late in his career as a champion of free speech and tells the story of the coterie of young intellectuals, led by Felix Frankfurter and Harold Laski, who worked assiduously to shape Holmes's views. It is a fascinating tale—and a charming one, of an aging and childless Holmes befriended by a rising generation of legal thinkers, surrogate sons who persuade him over time to take up their cause.

Mr. Healy, a professor of law at Seton Hall, is at his best detailing the younger men's campaign to win Holmes to their view of the First Amendment. In March 1919, Holmes still believed that the government could punish "disloyal" speech and wrote an opinion supporting the 1917 Espionage Act, which made it illegal to criticize the draft or American involvement in World War I. In Debs v. United States, the Supreme Court unanimously upheld the prosecution of Socialist Party leader Eugene Debs for his critical statements about the war. Less than nine months later, Holmes had changed his mind, dramatically. In Abrams v. United States, he broke with his colleagues and with his own earlier views and argued that the Constitution didn't permit the government to punish speech unless it posed a "clear and present danger" of public harm. Laws penalizing any other type of public speech were unconstitutional. Holmes's Abrams opinion is the "great dissent" of Mr. Healy's title.

The youthful acolytes had made the difference. As Mr. Healy elaborates, Holmes had developed a knack for collecting young admirers in his years on the Supreme Court (1902-32). In 1919, Holmes's circle included Frankfurter, a junior professor at Harvard Law School serving in the Wilson administration, and the Englishman Harold Laski, just 25 and like Frankfurter a Jew and a teacher at Harvard. Both men would go on to illustrious careers—Frankfurter on the Supreme Court and Laski as a political theorist and chairman of the British Labour Party. Both admired Holmes for his modernist intellectual outlook: for his skepticism about moral absolutes and dislike of formal legal doctrine; and for what they believed (mistakenly) to be Holmes's progressive political views.

Even before the Debs case, Laski had been plying Holmes with arguments about free speech. After Holmes's disappointing opinion in that case, Laski redoubled his efforts, assisted by letters from Frankfurter and well-timed essays from the pair's allies at the New Republic magazine. As it happened, both Laski and Frankfurter suffered professionally in 1919 for their sometimes outspoken political views—both were briefly in danger of being dismissed from Harvard. Mr. Healy implies that their ordeal may have heightened Holmes's appreciation for free speech. But the more likely turning point came in the summer of 1919, when Laski forwarded to Holmes an article defending freedom of speech for its social value and then introduced Holmes to its author, another young Harvard law professor named Zechariah Chafee Jr.

Chafee, who was no sort of progressive and whose specialty was business law, argued that free speech advanced a vital social interest by promoting the discovery and spread of truth, which in turn allowed democracy to function. Holmes had never been much of a proponent of individual liberty, but he was profoundly committed to majoritarian democracy. Free speech as a social good was a rationale he could buy. And in his Abrams dissent a few months later, he did. He would eventually conclude that the First Amendment shielded speech from both federal and state interference.

Mr. Healy tells this conversion story well, bringing the reader into Holmes's confidence and into the uneasy, war-weary milieu of 1919 America. "The Great Dissent" is compelling, too, for the glimpses it gives of the human Holmes rather than the Olympian public figure. Here is Holmes standing at his writing desk to compose his court opinions, keeping them brief lest his legs tire; waxing rhapsodic each spring about the bloodroot flowers in Rock Creek Park. He was unfailingly decorous to his colleagues—even as he was indifferent to his wife—but quivered and fumed at the merest hint of criticism, unable to acknowledge that he had ever been mistaken about anything of importance.

All too often, however, Mr. Healy lapses into hagiography and an annoyingly Whiggish mode of storytelling, in which our modern free-speech doctrine —which protects the right of individuals and corporations to speak on most any topic at most any time—is portrayed as the Inevitable Truth toward which constitutional history has been marching all along. In this story, Holmes's embrace of free speech emerges as the very culmination of his life's work and its linchpin. "It was almost as if Holmes had been working toward this moment his entire career," Mr. Healy says triumphantly.

Not quite. Holmes's endorsement of free speech as a constitutional principle was far more ambivalent than Mr. Healy lets on and in considerable tension with the rest of his jurisprudence. This is precisely what makes it so interesting. Holmes's struggle to reconcile freedom of speech with his other legal ideas helped him to see connections that contemporary Americans are apt to miss.

Holmes made his name on the court as an advocate of judicial restraint. He thought courts should overturn the judgment of democratic legislatures in only the most extraordinary of circumstances. He was a skeptic. He believed law didn't have much to do with morality—"absolute truth is a mirage," he once said—or even logic. As he saw it, law was nothing more than "the dominant opinion of society." The Constitution placed no firm bounds on the right of the majority to do as it pleased. It was "made for people of fundamentally differing views," he said. The majority could choose the view and pursue the policies it wanted, for the reasons it wanted.

All this being true, the judiciary had no business substituting its views for those of the public. If law was based merely on opinion and raw preference, the people's preferences should count, not judges'.

How then did Holmes come to hold that the First Amendment could be used to strike down laws of Congress and even of the states? The answer is that Holmes came to see the principle of free speech as an essential part of majority rule; it was valuable because it helped majorities get their way.

Mr. Healy notes the influence on Holmes of Chafee's "social argument" for free speech but fails to explain just how central it was to his conversion experience. In his dissenting opinion in Abrams, Holmes wrote: "The best test of truth is the power of the thought to get itself accepted in the competition of the market." Truth was whatever the majority thought it was, but if the majority was going to make up its mind in a sensible way, it needed to have as many options before it as possible. Then too, majorities changed their minds, and protecting speech that was unpopular now preserved opinions that the majority might come to favor in the future. "The only meaning of free speech," Holmes wrote in 1925, is that every idea "be given a chance" to become in time the majority creed.

Such reasoning tethered free speech to majority rule, but it was less than perfectly consistent. Even as he valorized the right to speak, Holmes continued to insist that "the dominant forces in the community" must get what they wanted. Yet if free speech were to mean anything at all as a constitutional right, it would mean that majorities could not get their way in all circumstances. From time to time, Holmes recognized as much; in one of his last opinions he wrote that the "principle of free thought" means at bottom "freedom for the thought we hate." How forcing the majority to tolerate speech it hated facilitated that same majority's right to have its way is a formula Holmes never quite explained.

Mr. Healy suggests that with Holmes's dissent in Abrams, the modern era of First Amendment law had arrived. But Holmes's majoritarianism didn't prevail as the principal rationale for free speech at the Supreme Court, which has instead emphasized individuals' right to speak regardless of the social interests involved. Still, for all its internal tensions, Holmes's unfinished view—he continued to puzzle over the problem right through his retirement from the court in 1932—captures something that the contemporary adulation of free speech has hidden.

Holmes saw that the Constitution's commitment to freedom of speech is inextricably bound up with the project of self-government that the Constitution was designed to make possible. That project depends on an open exchange of ideas, on discussion between citizens and their representatives, on the ability of everyday Americans to talk and reason together.

This sort of government is a way of life, and the First Amendment helps makes it possible by prohibiting the state from censoring the organs of social communication. The government may not control newspapers or printing presses or stop citizens from stating their views. Government may not halt the dissemination of ideas.

In the past half-century, however, the Supreme Court has increasingly spoken of the right to free speech as a right to free expression. Under that rubric, it has expanded the First Amendment to cover all manner of things unconnected to public life, be it art or pornography or commercial advertising. This trend has been even more pronounced in popular culture, where the right to express oneself is now widely regarded as the essence of the freedom to speak.

And to be sure, individual expression is a valuable thing. The danger is in coming to think of free speech as merely expression. That reductionism encourages Americans to see freedom of speech, and freedom generally, as mainly about the pursuit of private aims. But in the end, such thinking represents a loss of confidence, or worse, a loss of interest in the way of living that is self-government—in the shared decisions and mutual persuasion that is how a free people makes a life together. Ours is a country saturated with talk and shouted opinions and personal exhibitionism but one less and less interested in the shared civil discourse that democracy requires.

Holmes wouldn't have described free speech or self-government in such elevated terms. He was too much the skeptic for that. But he came to understand, in his own way, the profound value of free speech to a free people. The story of this discovery is worth revisiting.

—Mr. Hawley, an associate professor of law at the University of Missouri and former judicial clerk to Chief Justice of the United States John G. Roberts Jr., is the author of "Theodore Roosevelt: Preacher of Righteousness" (2008).

Friday, March 29, 2013

America's Voluntary Standards System: A 'Best Practice' Model for Asian Innovation Policies? By Dieter Ernst

America's Voluntary Standards System: A 'Best Practice' Model for Asian Innovation Policies? By Dieter Ernst
East-West Center, Policy Studies, No. 66, March 2013
ISBN: 978-0-309-26204-5 (print); 978-0-86638-205-2 (electronic)
Pages: xvi, 66
http://www.eastwestcenter.org/publications/americas-voluntary-standards-system-best-practice-model-asian-innovation-policies


Summary

Across Asia there is a keen interest in the potential advantages of America's market-led system of voluntary standards and its contribution to US innovation leadership in complex technologies.

For its proponents, the US tradition of bottom-up, decentralized, informal, market-led standardization is a "best practice" model for innovation policy. Observers in Asia are, however, concerned about possible drawbacks of a standards system largely driven by the private sector.

This study reviews the historical roots of the American system, examines its defining characteristics, and highlights its strengths and weaknesses. A tradition of decentralized local self-government has given voice to diverse stakeholders in innovation. However, a lack of effective coordination of multiple stakeholder strategies constrains effective and open standardization processes.

Asian countries seeking to improve their standards systems should study the strengths and weaknesses of the American system. Attempts to replicate the US standards system will face clear limitations--persistent differences in Asia's economic institutions, levels of development, and growth models are bound to limit convergence to a US-style market-led voluntary standards system.

Monday, March 18, 2013

In service of the country: Ted van Dyk

My Unrecognizable Democratic Party. By Ted van Dyk
The stakes are too high, please get serious about governing before it's too late.
http://online.wsj.com/article/SB10001424127887324128504578344611522010132.html 
The Wall Street Journal, March 18, 2013, on page A13

As a lifelong Democrat, I have a mental picture these days of my president, smiling broadly, at the wheel of a speeding convertible. His passengers are Democratic elected officials and candidates. Ahead of them, concealed by a bend in the road, is a concrete barrier.

They didn't have to take that route. Other Democratic presidents have won bipartisan support for proposals as liberal in their time as some of Mr. Obama's are now. Why does this administration seem so determined to head toward a potential crash and burn?

Even after the embarrassing playout of the Obama-invented Great Sequester Game, after the fiasco of the president's Fiscal Cliff Game, conventional wisdom among Democrats holds that disunited Republicans will be routed in the 2014 midterm elections, leaving an open field for the president's agenda in the final two years of his term. Yet modern political history indicates that big midterm Democratic gains are unlikely, and presidential second terms are notably unproductive, most of all in their waning months. Since 2012 there has been nothing about the Obama presidency to justify the confidence that Democrats now exhibit.

Mr. Obama was elected in 2008 on the basis of his persona and his pledge to end political and ideological polarization. His apparent everyone-in-it-together idealism was exactly what the country wanted and needed. On taking office, however, the president adopted a my-way-or-the-highway style of governance. He pursued his stimulus and health-care proposals on a congressional-Democrats-only basis. He rejected proposals of his own bipartisan Simpson-Bowles commission, which would have provided long-term deficit reduction and stabilized rapidly growing entitlement programs. He opted instead to demonize Republicans for their supposed hostility to Social Security, Medicare and Medicaid.

No serious attempt—for instance, by offering tort reform or allowing the sale of health-insurance products across state lines—was made to enlist GOP congressional support for the health bill. It passed, but the constituents of moderate Democrats punished them: 63 lost their seats in 2010 and Republicans took control of the House.

Faced with a similar situation in 1995, following another GOP House takeover, President Bill Clinton shifted to bipartisan governance. Mr. Obama did not, then blamed Republicans for their "obstructionism" in not yielding to him.

Defying the odds, Mr. Obama did become the first president since Franklin Roosevelt to be re-elected with an election-year unemployment rate above 7.8%. Yet his victory wasn't based on public affirmation of his agenda. Instead, it was based on a four-year mobilization—executed with unprecedented skill—of core Democratic constituencies, and on fear campaigns in which Mitt Romney and the Republicans were painted as waging a "war on women," being servants of the wealthy, and of being hostile toward Latinos, African Americans, gays and the middle class. I couldn't have imagined any one of the Democratic presidents or presidential candidates I served from 1960-92 using such down-on-all-fours tactics.

The unifier of 2008 became the calculated divider of 2012. Yes, it worked, but only narrowly, as the president's vote total fell off sharply from 2008.

Other modern Democratic presidents have had much more success with very different governing strategies. In 1961-62, John Kennedy won Republican congressional and public support with the proposals of his Keynesian Council of Economic Advisers chairman, Walter Heller, to cut personal and business taxes "to get America moving again," and for the global free movement of goods, services, capital and people.

In 1965, Lyndon Johnson had Democratic congressional majorities sufficient to pass any legislation he wanted. But he sought and received GOP congressional support for Medicare, Medicaid, civil rights, education and other Great Society legislation. He knew that in order to last, these initiatives needed consensus support. He did not want them re-debated later, as ObamaCare is being re-debated now.

Johnson got bipartisan backing for deficit reduction in 1967, when he learned that the deficit had reached an unthinkable $28 billion. Faced with today's annual deficits of $1 trillion and federal debt between $16.7 and $31 trillion, depending on whether you count off-budget obligations, LBJ no doubt would appoint a bipartisan Simpson-Bowles commission and use it to get a tax, spending and entitlements fix so that he could move on to the rest of his agenda. Bill Clinton took the same practical approach and got to a balanced federal budget as soon as he could, at the beginning of his second term.

These former Democratic presidents would also know today that no Democratic or liberal agenda can go forward if debt service is eating available resources. Nor can successful governance take place if presidential and Democratic Party rhetoric consistently portrays loyal-opposition leaders as having devious or extremist motives. We really are, as Mr. Obama pointed out in 2008, in it together.

It's not too late for the president to take a cue from his predecessors and enter good-faith budget negotiations with congressional Republicans. A few posturing meetings with GOP congressional leaders will not suffice. President Obama's hype about the horrors of fiscal-cliff and sequestration cuts, and his placing of blame on Republicans, have been correctly viewed as low politics. His approval ratings have plunged since the end of the sequestration exercise.

But time is running out for Democrats to get serious about governance. That concrete barrier—in the form of the 2014 midterm—lies just ahead on the highway, and they're joy riding straight toward it.

Mr. Van Dyk served in Democratic national administrations and campaigns over several decades. His memoir of public life, "Heroes, Hacks and Fools," was first published by University of Washington Press in 2007.

Wednesday, February 6, 2013

A Jersey Lesson in Voter Fraud. By Thomas Fleming

A Jersey Lesson in Voter Fraud. By Thomas Fleming
My grandmother died there in 1940. She voted Democratic for the next 10 years.The Wall Street Journal, February 6, 2013, on page A11
http://online.wsj.com/article/SB10001424127887323829504578272250730580018.html

Some youthful memories were stirred by the news this week that the president plans to use his State of the Union speech next Tuesday to urge Congress to make voter registration and ballot-casting easier. Like Mr. Obama, I come from a city with a colorful history of political corruption and vote fraud.

The president's town is Chicago, mine is Jersey City. Both were solidly Democratic in the 1930s and '40s, and their mayors were close friends. At one point in the early '30s, Jersey City's Frank Hague called Chicago's Ed Kelly to say he needed $2 million as soon as possible to survive a coming election. According to my father—one of Boss Hague's right-hand men—a dapper fellow who had taken an overnight train arrived at Jersey City's City Hall the next morning, suitcase in hand, cash inside.

Those were the days when it was glorious to be a Democrat. As a historian, I give talks from time to time. In a recent one, called "Us Against Them," I said it was we Irish and our Italian, Polish and other ethnic allies against "the dirty rotten stinking WASP Protestant Republicans of New Jersey." By thus demeaning the opposition, we had clear consciences as we rolled up killer majorities using tactics that had little to do with the election laws.

My grandmother Mary Dolan died in 1940. But she voted Democratic for the next 10 years. An election bureau official came to our door one time and asked if Mrs. Dolan was still living in our house. "She's upstairs taking a nap," I replied. Satisfied, he left.

Thousands of other ghosts cast similar ballots every Election Day in Jersey City. Another technique was the use of "floaters," tough Irishmen imported from New York who voted five, six and even 10 times at various polling places.

Equally effective was cash-per-vote. On more than one Election Day, my father called the ward's chief bookmaker to tell him: "I need 10 grand by one o'clock." He always got it, and his ward had a formidable Democratic majority when the polls closed.

Other times, as the clock ticked into the wee hours, word would often arrive in the polling places that the dirty rotten stinking WASP Protestant Republicans had built up a commanding lead in South Jersey, where "Nucky" Johnson (currently being immortalized on TV in HBO's "Boardwalk Empire") had a small Republican machine in Atlantic City.

By dawn, tens of thousands of hitherto unknown Jersey City ballots would be counted and another Democratic governor or senator would be in office, and the Democratic presidential candidate would benefit as well. Things in Chicago were no different, Boss Hague would remark after returning from one of his frequent visits.

I have to laugh when I hear current-day Democrats not only lobbying against voter-identification laws but campaigning to make voting even easier than it already is. More laughable is the idea of dressing up the matter as a civil-rights issue.

My youthful outlook on life—that anything goes against the rotten stinking WASP Protestant Republicans—evaporated while I served in the U.S. Navy in World War II. In that conflict, millions of people like me acquired a new understanding of what it meant to be an American.

Later I became a historian of this nation's early years—and I can assure President Obama that no founding father would tolerate the idea of unidentified voters. These men understood the possibility and the reality of political corruption. They knew it might erupt at any time within a city or state.

The president's party—which is still my party—has inspired countless Americans by looking out for the less fortunate. No doubt that instinct motivated Mr. Obama in his years as a community organizer in Chicago. Such caring can still be a force, but that force, and the Democratic Party, will be constantly soiled and corrupted if the right and the privilege to vote becomes an easily manipulated joke.

Mr. Fleming is a former president of the Society of American Historians.

Monday, December 24, 2012

A case study in the dangers of the Law of the Sea Treaty

Lawless at Sea. WSJ Editorial
A case study in the dangers of the Law of the Sea Treaty.
The Wall Street Journal, December 24, 2012, on page A12
http://online.wsj.com/article/SB10001424127887324407504578187523862827016.html

The curious case of the U.S. hedge fund, the Argentine ship and Ghana is getting curiouser, and now it has taken a turn against national sovereignty. That's the only reasonable conclusion after a bizarre ruling this month from the International Tribunal for the Law of the Sea in Hamburg.

The tribunal—who knew it existed?—ordered the Republic of Ghana to overrule a decision of its own judiciary that had enforced a U.S. court judgment. The Hamburg court is the misbegotten child of the 1982 United Nations Convention on the Law of the Sea. Sold as a treaty to ensure the free movement of people and goods on the high seas, it was rejected by Ronald Reagan as an effort to control and redistribute the resources of the world's oceans.

The U.S. never has ratified the treaty, despite a push by President Obama, and now the solons of Hamburg have demonstrated the wisdom of that decision. While debates on the treaty have centered around the powers a country might enjoy hundreds of miles off its coast, many analysts have simply assumed that nations would still exercise control over the waters just offshore.

Now the Hamburg court has trampled local law in a case involving a ship sitting in port, and every country is now on notice that a Hamburg court is claiming authority over its internal waters.

Specifically, Hamburg ordered Ghana to release a sailing ship owned by the Argentine navy. On October 2, a subsidiary of U.S. investment fund Elliott Management persuaded a Ghanaian judge to order the seizure of the vessel. The old-fashioned schooner, used to train cadets, was on a tour of West Africa.

U.S. hedge funds don't normally seize naval ships, but in this case Elliott and the Ghanaian court are on solid ground. Elliott owns Argentine bonds on which Buenos Aires has been refusing to pay since its 2001 default. Elliott argues that a contract is a contract, and a federal court in New York agrees. Argentina had freely decided to issue its debt in U.S. capital markets and had agreed in its bond contracts to waive the sovereign immunity that would normally prevent lenders from seizing things like three-masted frigates.

To his credit, Judge Richard Adjei-Frimpong of Ghana's commercial court noted that Argentina had specifically waived its immunity when borrowing the money and that under Ghanaian law the ship could therefore be attached by creditors with a valid U.S. judgment registered in Ghana. He ordered the ship held at port until Buenos Aires starts following the orders of the U.S. court.

But in its recent ruling, which ordered Ghana to release the ship by December 22, the Hamburg court claimed that international law requires immunity for the Argentine "warship," as if Argentina never waived immunity and as if this is an actual warship. On Wednesday, Ghana released the vessel, and the ship set sail from the port of Tema for its trans-Atlantic voyage.

So here we have a case in which a small African nation admirably tried to adhere to the rule of law. Yet it was bullied by a global tribunal serving the ends of Argentina, which has brazenly violated the law in refusing to pay its debts and defying Ghana's court order. The next time the Senate moves to ratify the Law of the Sea Treaty, Ghana should be exhibit A for opponents.

Wednesday, August 24, 2011

Views on the balanced budget amendment

1  In favor: Considering a Balanced Budget Amendment: Lessons from History, by E Istook, http://www.heritage.org/Research/Reports/2011/07/Considering-a-Balanced-Budget-Amendment-Lessons-from-History (Spanish: http://www.libertad.org/lecciones-de-la-historia-sobre-la-enmienda-del-presupuesto-balanceado)

Abstract: Attempts at passing a balanced budget amendment (BBA) date back to the 1930s, and all have been unsuccessful. Both parties carry some of the blame: The GOP too often has been neglectful of the issue, and the Democratic Left, recognizing a threat to big government, has stalled and obfuscated, attempting to water down any proposals to mandate balanced budgets. On the occasion of the July 2011 vote on a new proposed BBA, former Representative from Oklahoma Ernest Istook presents lessons from history.


2  Against from a conservative or libertarian viewpoint: The Balanced Budget Amendment's Fatal Flaw. By PETER H. SCHUCK
http://online.wsj.com/article/SB10001424053111903554904576459902841916850.html
Nothing would give judges more policy-making power.
WSJ, Jul 22, 2011

A balanced budget amendment (BBA), a hardy perennial in Congress, is once again in the headlines. This is entirely understandable. The public trusts neither the president nor Congress, regardless of the party in control, to strike and maintain an economically healthy, sustainable balance between federal spending and revenues. Thus, the idea of tying them to the constitutional mast, Ulysses-like, so that they cannot succumb to the inevitable temptation to spend more and tax less is itself tempting to many reformers and voters.

Nevertheless, many sound objections to a BBA exist, which the current version—indeed, any version—cannot adequately address. Many of these objections, such as the need for deficit spending in a recession, are hoary Keynesian pieties and will resonate only with liberals and moderates. But one objection, largely absent from the debate so far, should convince even the most hidebound conservative to strongly oppose the BBA.

I can think of no other law that would empower judges to exercise more political and policy-making discretion than a balanced budget amendment. It would quickly realize every conservative's fears of an "imperial judiciary" that "legislates from the bench"—even if the courts simply did their job and did not grasp for that power.

First, the courts would be swamped with challenges to every governmental decision with significant budgetary implications, which means almost all important decisions. As federal Judge Ralph Winter pointed out long ago, the judges would have to decide who, if anyone, would have standing to sue and who the proper defendant would be. If they ruled that no one had standing, then the amendment would be legally unenforceable, a dead letter. If the judges found standing, however, a host of exceptionally controversial legal-interpretation issues would arise.

Perhaps the most fundamental questions have been posed by Rudy Penner, who was Congressional Budget Office director in the Reagan years: What is a "budget," and which budgets are covered by the amendment? This is pivotal because the amendment would create an irresistible incentive for politicians to expand "off-budget" programs or establish new ones.

Social Security, Fannie Mae, Freddie Mac, the Postal Service and the new Consumer Financial Protection Bureau are all off-budget and constitute a huge share of federal fiscal commitments. The BBA does not even mention this multitrillion-pound gorilla, nor does it deal with the creation of new off-budget spending programs which would certainly proliferate in its wake, so a judge would have to decide whether they are included. (The state and local equivalent dodge of balanced budget rules is the "special district"—some 40,000 nationwide—which often has taxing power. )

The BBA also uses the basic term "tax" as if it were self-defining, but of course it isn't. Indeed, one of the key issues in the legal challenge to ObamaCare is whether the spending mandates in the legislation constitute a tax (as the administration argues) or a penalty (as its opponents claim). Only the courts can decide—and so far they have split on the issue. This is political power of a high order, given the importance of the legislation.

Then there are the classic ploys that governments use to evade budgetary restrictions, about which the BBA is also silent. Does the amendment's term "outlay" apply to long-term capital investments such as infrastructure spending, of which the Obama administration is so fond? If not, we can anticipate lots more spending being called capital investment. The judges will have to decide whether the amendment applies or not.

Does "outlay" cover government loan guarantees—a form of subsidy used promiscuously by government to avoid budgetary constraints? Does "revenue" include so-called "offsetting receipts" such as the large amounts that Medicare beneficiaries pay for their physician and drug benefits? If so, we can expect Congress to use more of them. Again, the courts will have to decide.

It does seem clear that the amendment would not cover private expenditures mandated by government regulation of individuals and firms. After all, regulations affect private budgets, not governmental ones; that is part of their political appeal. If the BBA passes, then look for the politicians to transfer much of their spending desires into a burst of new regulations. For conservatives, this should be a nightmare.

The political pundits report that there is no chance that the balanced budget amendment will pass. This should be cause for conservative celebration, not disappointment.


Mr. Schuck is a professor at Yale Law School and the co-editor, with James Q. Wilson, of "Understanding America: The Anatomy of an Exceptional Nation" (PublicAffairs, 2008).

Saturday, April 24, 2010

Miss Me Yet? The Freedom Agenda After George W. Bush

Miss Me Yet? The Freedom Agenda After George W. Bush. By Bari Weiss
Dissidents in the world's most oppressive countries aren't feeling the love from President Obama.WSJ, Apr 24, 2010

Dallas

No one seems to know precisely who is behind the "Miss Me Yet?" billboard—the cheeky one featuring a grinning George W. Bush that looks out over I-35 near Wyoming, Minn. But Syrian dissident Ahed Al-Hendi sympathizes with the thought.

In 2006, Mr. Hendi was browsing pro-democracy Web sites in a Damascus Internet café when plainclothes cops carrying automatic guns swooped in, cuffed him, and threw him into the trunk of a car. He spent over a month in prison, some of it alone in a 5-by-3 windowless basement cell where he listened to his friend being tortured in the one next door. Those screams, he says, were cold comfort—at least he knew his friend hadn't been killed.

Mr. Hendi was one of the lucky ones: He's now living in Maryland as a political refugee where he works for an organization called Cyberdissidents.org. And this past Monday, he joined other international dissidents at a conference sponsored by the Bush Institute at Southern Methodist University to discuss the way digital tools can be used to resist repressive regimes.

He also got to meet the 43rd president. In a private breakfast hosted by Mr. and Mrs. Bush, Mr. Hendi's message to the former president was simple: "We miss you." There have been "a lot of changes" under the current administration, he added, and not for the better.

Adrian Hong, who was imprisoned in China in 2006 for his work helping North Koreans escape the country (a modern underground railroad), echoed that idea. "When I was released [after 10 days] I was told it was because of very strong messaging from the White House and the culture you set," he told Mr. Bush.

The former president, now sporting a deep tan, didn't mention President Obama once on or off the record. The most he would say was, "I'm really concerned about an isolationist mentality . . . I don't think it lives up to the values of our country." The dissidents weren't so diplomatic.

Mr. Hendi elaborated on the policy changes he thinks Mr. Obama has made toward his home country. "In Syria, when a single dissident was arrested during the administration of George W. Bush, at the very least the White House spokesman would condemn it. Under the Obama administration: nothing."

Nor is Mr. Hendi a fan of this administration's efforts to engage the regime, most recently by deciding to send an ambassador to Damascus for the first time since 2005. "This gives confidence to the regime," he says. "They are not capable of a dialogue; they don't believe in it. They believe in force."

Mr. Hong put things this way: "When you look at the championing of dissidents . . . and even the rhetoric, it's dropped off sharply." Under Mr. Bush, he says, there were many high-profile meetings with North Korean dissidents. "They went out of their way to show this was a priority."

Then there is Marcel Granier, the president of RCTV, Venezuela's oldest and most popular television station. He employs several thousand people—or at least he did until Hugo Chávez cancelled the network's license in 2007. Now, he's struggling to maintain an independent channel on cable: Mr. Chávez ordered the cable networks not to carry his station in January. Government supporters have attacked his home with tear gas twice, yet he remains in the country, tirelessly advocating for media freedom.

Like many of the democrats at the conference, Mr. Granier was excited by Mr. Obama's historic election, and inspired by the way he energized American voters. But a year and a half later, he's disturbed by the administration's silence as his country slips rapidly towards dictatorship. "In Afghanistan," he quips, "at least they know that America will be involved for the next 18 months."

This sense of abandonment has been fueled by real policy shifts. Just this week word came that the administration cut funds to promote democracy in Egypt by half. Programs in countries like Jordan and Iran have also faced cuts. Then there are the symbolic gestures: letting the Dalai Lama out the back door, paltry statements of support for Iranian demonstrators, smiling and shaking hands with Mr. Chávez, and so on.

Daniel Baer, a representative from the State Department who participated in the conference, dismissed the notion that the White House has distanced itself from human-rights promotion as a baseless "meme" when I raised the issue. But in fact all of this is of a piece of Mr. Obama's overarching strategy to make it abundantly clear that he is not his predecessor.

Mr. Bush is almost certainly aware that the freedom agenda, the centerpiece of his presidency, has become indelibly linked to the war in Iraq and to regime change by force. Too bad. The peaceful promotion of human rights and democracy—in part by supporting the individuals risking their lives for liberty—are consonant with America's most basic values. Standing up for them should not be a partisan issue.

Yet for now Mr. Bush is simply not the right poster boy: He can't successfully rebrand and depoliticize the freedom agenda. So perhaps he hopes that by sitting back he can let Americans who remain wary of publicly embracing this cause become comfortable with it again. For the sake of the courageous democrats in countries like Iran, Cuba, North Korea, Venezuela, Colombia, China and Russia, let's hope so.

Ms. Weiss is an assistant editorial features editor at the Journal.

Tuesday, September 22, 2009

How Missouri Cut Junk Lawsuits

How Missouri Cut Junk Lawsuits. By MATT BLUNT
We showed how to do malpractice reform, if Congress wants a model
The Wall Street Journal, page A23, Sep 22, 2009

There has been a lot of talk in Washington about cutting wasteful health-care spending, but it is troubling that such talk has not created a sense of urgency for national tort reform. It is especially frustrating because states have already shown that curbing junk lawsuits can cut costs, create jobs, and increase the quality of care available to patients.

I know this because that is exactly what happened in Missouri when, as governor, I helped to enact comprehensive reforms.

I took office in January 2005 at a time when runaway lawsuits were driving up the cost of doing business in my state and forcing doctors and other business owners to close their doors. The U.S. Chamber of Commerce Institute for Legal Reform keeps a list of states ranked according to their legal environment. At the time, Missouri ranked among the 10 worst.

"Venue-shopping," a tactic that involves shifting a case to a friendly court regardless of where the injury occurred, was common. Defendants could be made to pay 100% of a judgment even if they were only 1% responsible for the injury. And caps on damages had been rendered meaningless by state court decisions.

This legal environment raised the cost of health care for everyone and imposed stiff costs on businesses. It also forced doctors to close their doors. For example, the eastern half of Jackson County, one of Missouri's largest, lost its only neurosurgeons in 2003 due to high malpractice insurance costs. Many other parts of the state suffered from a lack of doctors able to deliver babies. One obstetrician who delivered more than 200 babies annually was forced to quit after his annual insurance premiums skyrocketed 82% in just one year. Making matters worse, few new doctors wanted to move to Missouri. One Kansas City area doctor sent letters to more than 400 physicians finishing their residencies and did not receive a single response back.

To counteract these problems we required that cases be heard in the county where the alleged injury occurred, and we changed the law so that defendants could only be forced to pay a full judgment if their fault exceeded 50%.

We put a $350,000 cap on noneconomic damages and created rules to prevent baseless cases from getting off of the ground. Previously, personal injury lawyers could file cases if they got a written affidavit from any qualified health-care provider claiming that there was negligence. We tightened that by requiring that the affidavit come from an active professional practicing substantially the same specialty as the defendant.

We also took another common-sense step. Doctors often express empathy to a suffering patient regardless of fault. Saying you are "sorry" for someone's plight is a testament of good character, and should not be used against you in court. But tort lawyers were claiming that such statements were an admission of guilt. We stopped that abuse.

Tort reform works. Missouri's medical malpractice claims are now at a 30-year low. Average payouts are about $50,000 below the 2005 average. Malpractice insurers are also turning a profit for the fifth year in a row—allowing other insurers to compete for business in Missouri. This will drive down costs, which will save government programs money as well as improve the system for patients. It will also leave doctors with more resources to invest in better care.
Since 2005, Missouri has moved up to 31st on the Chamber of Commerce Institute for Legal Reform's list.

Because we passed tort reform, cut taxes and controlled state spending, Missouri's economy is now in better shape than it would have been. During the four years I was in office, about 70,000 net new jobs were created in my state.

Texas has seen similar success from its 2003 tort reforms. The number of doctors applying for a license in that state has increased by 57% and doctors' insurance rates have declined by an average of 27%. There are now more doctors in Texas providing care in previously underserved areas.

There is no reason that the success that Missouri, Texas and other states have experienced cannot be replicated nationally. States are demonstrating that tort reform lowers costs, expands access, and creates jobs. The time to get behind national tort reform is now.

Mr. Blunt, a Republican, is a former governor of Missouri.

Tuesday, September 8, 2009

Beijing Plays Hedge Ball - A contract should be a contract

Beijing Plays Hedge Ball. WSJ Editorial
A contract should be a contract.
WSJ, Sep 09, 2009

Beijing needs to clarify whether a contract is a contract, and fast. Recent suggestions that the government might allow or even encourage companies to challenge derivatives contracts that went against them send a bad signal to foreign companies and countries doing business with China.

The controversy stems from commodities hedges gone wrong. When fuel prices were high, airlines like China Eastern, Air China and Shanghai Airlines and shippers like China Ocean Shipping crafted derivatives contracts with foreign banks to protect the companies from even higher fuel prices. Instead the price of oil has fallen, leaving the companies on the hook for the downside risk of their hedge—a total of about $2 billion for the airlines alone, by some counts.

The companies are crying foul, and several reportedly sent a letter to the banks that sold them the derivatives suggesting they may be "void, invalid or unenforceable." Worse, the government is getting into the act. The state-owned Assets Supervision and Administration Commission, which oversees these companies, on Monday posted a statement on its Web site suggesting that Beijing might countenance efforts to sue to nullify the contracts.

China has been down this road before, pushing foreign counterparties several times over the past decade to back down from derivatives contracts that had turned against a Chinese company. In those cases, the companies or the government variously argued that the firms had been illegally speculating or had not understood the risks they were taking—or even that the people signing the papers on behalf of the Chinese companies hadn't been authorized to do so. It's hard to see how such arguments could apply to the kind of bread-and-butter fuel hedging at issue here.

Policy makers might think the government holds a lot of cards in this case, and in some respects it does. While the derivatives contracts would be tough to wriggle out of legally since they're enforceable through courts in Hong Kong, Singapore or Britain, it would be hard for the banks to collect on any judgment unless they're willing to seize planes at Heathrow or Changi airports.

The banks would have strong incentives not to try, too. Regulators in Beijing decide whether the foreign banks receive various business licenses, for instance, and state-owned enterprises constitute some of the biggest bank clients. Especially since the goal could only be to renegotiate the contracts instead of canceling them, policy makers and executives might think the banks will be willing to pay that price to continue doing business in China.

But this kind of bullying is not free. Most immediately, hedging is a risk-management tool that many Chinese companies can't afford to live without. It works on trust between counterparties that each side will hold up its end of the bargain. Already banks reportedly are demanding higher collateral for derivatives contracts like those at issue here to compensate for the loss of trust. That's an added cost of doing business not faced by other airlines that take their lumps when hedges go wrong. like Hong Kong's Cathay Pacific or America's United.

This incident will leave foreign investors wondering where China stands on its road to commercial rule of law. Following the arrests of Rio Tinto executives in a dispute over ore prices, foreign businesses already have to wonder about their physical safety if they run afoul of Chinese companies in contract negotiations. Now it appears foreign companies can be in financial danger simply for ending up on the "wrong" side of a standard off-the-shelf derivatives transaction.

Beijing officials may not realize the potential effects of this controversy on Chinese companies investing abroad. Chinese mergers and acquisitions in countries like America or Australia have been controversial in large part because politicians in those countries have worried about a lack of transparency within Chinese companies, and whether those companies would play by the rules once they hit foreign shores. Politicians already predisposed to oppose Chinese investment—and perhaps some who'd otherwise support allowing such investments—will hardly take comfort from a sign that Chinese companies won't play by the rules if it doesn't suit them. If Beijing is actively trying to dissuade foreign investment, it's on the right track.

Beijing might be responding to a political storm over the notion Chinese companies have been exploited by Western banks (one wag has called derivatives "financial opium," a charged phrase in China). Or it could be trying to bail out a few companies that made bad fuel-price bets. Or some other political motivation could be at work. Whatever the cause, though, Beijing's only smart way forward is to state clearly that a contract is a contract and that Chinese companies must abide by theirs.

Monday, June 29, 2009

The health-care systems Democrats want to emulate don't allow contingency fees or large jury awards

How Other Countries Judge Malpractice. By RICHARD A. EPSTEIN
The health-care systems Democrats want to emulate don't allow contingency fees or large jury awards.
The Wall Street Journal, Jun 30, 2009, p A15

In his recent speech to the American Medical Association, President Barack Obama held out the tantalizing possibility of reforming medical malpractice law as part of a comprehensive overhaul of the U.S. health-care system. As usual, he hedged his bets by declining to endorse the only medical malpractice reform with real bite -- a national cap on damages for pain and suffering, such as the ones enacted in more than 30 states.

These caps are usually set between $250,000 to $500,000, and they can make a substantial difference. Other reforms, such as rules that limit contingency fees, shorten statutes of limitation, or confine each defendant's tort exposure to his proportionate share of the harm, have small and uncertain effects.

Medical malpractice, of course, is not just an American issue. And now that the U.S. is considering universal health-care systems similar to those found elsewhere, it's worth a quick peek at their medical malpractice systems -- which usually attract far less controversy, and are far less expensive, than our own.

Litigation in the U.S. has at least four distinctive procedural features that drive up malpractice costs. The first is jury trials, which can veer out of control and in any case introduce significant uncertainty. The second is the contingency-fee system, which allows well-heeled lawyers to self-finance litigation. The third is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner. The fourth is extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.

Even these features aren't the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere -- in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

The overall picture is still more complex, since there are major variations in medical malpractice rules in different American states, and differences within states, such as between juries in big cities and those in small towns. Doctrinal reform cannot stop these abuses. What is needed is the replacement of juries with specialized commissions like those in France, which help reduce litigation expenses and promote uniformity in case outcomes across regions.

What then does this quick survey teach us about the ability of our system to deter medical injuries and compensate its victims? Not much that's encouraging.

A study led by David Studdert published in the 2006 New England Journal of Medicine concluded that the administrative expenses of the malpractice system were "exorbitant." And worse, it found errors in jury verdicts in about a quarter of the litigated cases. Juries denied compensation properly due in 16% of the cases, and awarded it about 10% of the time when it was unwarranted. These error rates don't include damage awards set at improper levels.

More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgood Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. -- for about 10% the total cost. In other words, our costly system doesn't seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.

The U.S. cannot ignore serious reform. To be sure, medical malpractice premiums constitute well under 1% of the total U.S. health-care bill. But defensive medicine adds perhaps as much as 10%. High malpractice costs can shut down clinics that serve vulnerable populations, leading to more patient harm than the occasional case of malpractice.

The best reform would be to allow physicians, hospitals and patients to contract out of the liability mess by letting the parties reject state-imposed malpractice rules. They could, for example, choose to arbitrate, to waive jury trials, or to limit damage recovery. Stiff competition and the need to maintain reputation should keep medical providers in line in such a system. Market-based solutions that make the private sector more responsive should in turn undermine the case for moving head-first into a government-run health-care system with vast, unintended inefficiencies of its own.

Mr. Epstein is a professor of law at the University of Chicago, a senior fellow at the Hoover Institution, and a visiting professor at NYU Law School.

Tuesday, May 12, 2009

'Thought Crimes' Bill Advances

'Thought Crimes' Bill Advances. By Nat Hentoff
This article appeared in the Metro West Daily News on May 11, 2009.
Cato

Why is the press remaining mostly silent about the so-called "hate crimes law" that passed in the House on April 29? The Local Law Enforcement Hate Crimes Prevention Act passed in a 249-175 vote (17 Republicans joined with 231 Democrats). These Democrats should have been tested on their knowledge of the First Amendment, equal protection of the laws (14th Amendment), and the prohibition of double jeopardy (no American can be prosecuted twice for the same crime or offense). If they had been, they would have known that this proposal, now headed for a Senate vote, violates all these constitutional provisions.

This bill would make it a federal crime to willfully cause bodily injury (or try to) because of the victim's actual or perceived "race, color, religion, national origin, gender, sexual orientation, gender identity or disability" - as explained on the White House Web site, signaling the president's approval. A defendant convicted on these grounds would be charged with a "hate crime" in addition to the original crime, and would get extra prison time.

The extra punishment applies only to these "protected classes." As Denver criminal defense lawyer Robert J Corry Jr. asked (Denver Post April 28): "Isn't every criminal act that harms another person a 'hate crime'?" Then, regarding a Colorado "hate crime" law, one of 45 such state laws, Corry wrote: "When a Colorado gang engaged in an initiation ritual of specifically seeking out a "white woman" to rape, the Boulder prosecutor declined to pursue 'hate crime' charges." She was not enough of one of its protected classes.

Corey adds that the state "hate crime" law - like the newly expanded House of Representatives federal bill - "does not apply equally" (as the 14th Amendment requires), essentially instead "criminalizing only politically incorrect thoughts directed against politically incorrect victim categories."

Whether you're a Republican or Democrat, think hard about what Corry adds: "A government powerful enough to pick and choose which thoughts to prosecute is a government too powerful."
But James Madison, who initially introduced the First Amendment to the Constitution, had previously written to Thomas Jefferson on the passage of the Virginia Statute on Religious Freedom: "We have in this country extinguished forever ... making laws for the human mind." No American, he emphasized later, would be punished for his "thoughts."

However, doesn't the House "Hate Crimes Bill" state that nothing in the legislation shall "prohibit any expressive conduct protected from legal prohibition" - or speech "protected by the free speech or free exercise clauses in the First Amendment"?

Remember, however, as Kathleen Gilbert notes (LifeSiteNews.com) that "free speech advocates have pointed out that under current U.S. law, any action that 'abets, counsels, commands (or) induces a perceived 'hate crime' shares in the guilt of that crime and is therefore punishable."
But doesn't this new bill slip in an insistence that "evidence or expression or association of the defendant may not be introduced as evidence at trail unless the evidence specifically relates to that offense"?

In the definitive constitutional analysis of James B. Jacobs and researcher Kimberly Potter (Oxford University Press 1998, still in print), it is documented in "Hate Crimes: Criminal Law and Identity Politics" that "In Grimm v. Churchill the arresting officer was permitted to testify that the defendant had a history of making racial remarks. Similarly, in People v. Lampkin, the prosecution presented as evidence racist statements the defendant had uttered six years before the crime for which he was on trial," as specifically relating to the offense.

As for the 14th Amendment's essential requirement that no person be denied "the equal protection of the laws," there is carved above the entrance to the Supreme Court: "Equal Justice Under Law."

This legislation, certain to be passed by the Senate, will come to the Supreme Court. I hope the Justices will look up at the carving as they go into the building.

They should also remember that the Fifth Amendment makes clear: "nor shall any person be subject for the same offence to be twice put in jeopardy." But the House "hate crime" bill allows defendants found innocent of that offense in a state court to be tried again in federal court because of insufficiently diligent prosecutors; or, as Attorney General Eric Holder says, when state prosecutors claim lack of evidence. It must be tried again in federal court!
Imagine Holder as the state prosecutor in the long early stages of the Duke University Lacrosse rape case!

What also appalls me, as the new federal bill races toward a presidential signature, is that for years, and now, the American Civil Liberties Union approves "hate crimes" prosecutions!

I have long depended on the ACLU's staff of constitutional warriors to act persistently against government abuses of our founding documents. And these attorneys and analysts have been especially valuable in exposing the results of executive-branch lunges against the separation of powers in the Bush-Cheney years, and still under Obama.

Is there no non-politically correct ACLU lawyer or other staff worker or anyone in the ACLU affiliates around the country or any dues-paying member outraged enough to demand of the ACLU's ruling circle to at last disavow this corruption of the Constitution?

And the president, former senior lecturer in that document at the University of Chicago, should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.

Monday, May 11, 2009

WaPo: The White House should join lawmakers in reforming the state secrets doctrine

Securing Lawsuits. WaPo Editorial
The White House should join lawmakers in reforming the state secrets doctrine.
WaPo, Monday, May 11, 2009

ON CONSECUTIVE days last month, a federal appeals court and the president of the United States revealed that they had come to the same conclusion: The state secrets doctrine, which has been used to shut down litigation that the government claims to be risky for national security, needs to be revamped.

During an April 29 news conference, President Obama called the doctrine "overbroad." "I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can't litigate without revealing covert activities or classified information that would genuinely compromise our safety," Mr. Obama said, but he added, "There should be some additional tools, so that it's not such a blunt instrument."

Yet the Obama administration seized on the most blunt interpretation of the state secrets doctrine this year in a lawsuit brought by five men who sued Jeppesen DataPlan, claiming that the Boeing subsidiary helped the Bush administration carry out extraordinary renditions that led to their torture. The Obama Justice Department -- like the Bush administration -- argued that no part of the case could be litigated without the threat of compromising national security.

The day before the president's news conference, the U.S. Court of Appeals for the 9th Circuit roundly rejected the administration's assertions. In an April 28 opinion, the court ruled that a trial judge should proceed with the case and evaluate individual claims of government secrecy. If a piece of evidence is deemed too sensitive, it may be stricken, but the plaintiff may still try to prove his case using unclassified evidence.

The 9th Circuit's decision squarely conflicts with a 2007 decision of the Richmond-based 4th Circuit to throw out the case of Khaled al-Masri, a German national who was seized in 2004 by U.S. operatives and allegedly tortured. The Justice Department could appeal the 9th Circuit decision, so as to allow the Supreme Court to resolve the conflict. But a better course would be to begin working with lawmakers to fine-tune the proposed State Secrets Protection Act.

The bill, originally championed by Sen. Edward M. Kennedy (D-Mass.) and recently reintroduced by Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), would allow judges to privately review information that the government claims is too sensitive for public dissemination. If a specific piece of evidence was deemed too sensitive, the bill would allow the government to provide unclassified summaries of evidence to plaintiffs' lawyers with appropriate security clearances. If even that proved unworkable, the judge could exclude the evidence, but the entire case would not have to be dismissed.

The executive's prerogatives to protect national security must be respected, as must the rights of private litigants to have a fighting chance in court. Passage of the State Secrets Protection Act would ensure that these factors are weighed fairly no matter who sits in the Oval Office.

Thursday, May 7, 2009

The Justice Department, torture and the Demjanjuk deportation case

The Justice Department’s Torture Hypocrisy. By Andrew C. McCarthy
Investigate Bush lawyers’ torture analysis one day, cite it favorably the next.
NRO, May 6, 2009 1:30 PM

Sunday, May 3, 2009

He Fought the Tort Bar -- and Won

He Fought the Tort Bar -- and Won. By Kimberley A Strassel
Thanks to a CEO's persistence, a federal judge discovers massive lawsuit fraud.
WSJ, May 2, 2009

Berkeley Springs, W. Va.

Officially, John A. Ulizio is the CEO of U.S. Silica, one of the nation's largest producers of industrial sand. Unofficially, he's the man who fought the tort bar -- and won. It's a singular distinction in the world of runaway lawsuits.

Clad in a hardhat and boots, standing in a quarry in which giant haul trucks carry Flintstone-sized boulders, the 53-year-old Mr. Ulizio seems an unlikely foe of today's slick plaintiffs' bar. The son of a Pennsylvania steel worker, he is blunt-spoken, works in a little-noticed industry, and likes to point out he's a Democrat ("probably the only one in the building.") What a cursory observation of Mr. Ulizio misses is his own law degree, and his steely sense of right and wrong.

In 2003 alone -- the year he took the company's top job -- U.S. Silica was served with nearly 20,000 lawsuits claiming it had caused silicosis -- a serious, if rare, lung disease. The tort bar saw silica as the "new asbestos," says Mr. Ulizio, and he had visions of his century-old concern going bankrupt, along with dozens of others.

Instead what ensued was a legal thriller, in which the defendants not only beat the suits, but exposed a mob of lawyers and doctors who were fabricating cases, and who are now under investigation. This year his company has been hit by only one silicosis claim. "We hoped the truth would prevail eventually," he says, back in the conference room of the company's modest headquarters. The realist adds: "It worked, but it didn't have to."

And that might be the most disturbing part of Mr. Ulizio's tale. "When you have an entire system that condones these lawsuits, that does nothing to police its own, where there are no consequences, right or wrong has nothing to do with it. It's a coin flip."

In June of 2005, Texas federal Judge Janice Graham Jack -- who was overseeing 9,000 silicosis lawsuits aggregated in her court -- issued an opinion that shook the tort bar to its core. During depositions, the handful of doctors who provided nearly all these diagnoses began to crack, admitting they'd never seen patients, that their secretaries had filled out forms, and that lawyers had told them what to write. It came out that two-thirds of those claiming to have silicosis had previously claimed to asbestosis -- a near medical impossibility.

Judge Jack's 249-page scathing opinion unraveled a scam of giant proportions. She accused the doctors and lawyers of "diagnoses that were manufactured for money," provided evidence of fraud, required a Houston plaintiff's firm to pay defense legal costs, and issued sanctions.

Within a few months, Congress and a federal grand jury were investigating. For U.S. Silica, named in nearly every suit, it was a fairy tale end to a nightmare. Even Mr. Ulizio was shocked. "It was like, 'Oh my God, finally, after all these years, somebody is seeing the truth.'"

Years being the operative word. Mr. Ulizio is a humble guy, and gruffly waves off suggestions that he or his company played any special role in this victory. He ascribes the Texas success to all the defendants equally, as well as the willingness of insurers to join the battle, and to enlist top-notch attorneys. But that is to ignore the knowledge and the backbone Mr. Ulizio and U.S. Silica brought to this fight.

Silicosis litigation isn't new. Silica is one of those products that has been around forever and is used in just about everything, though nobody knows it. The West Virginia factory is a grinding operation: The company mills sand into different sizes, which is then used in everything from glass, to Kevlar, to paint, to the molds used to create steel forms. With silica comes silica dust, which has been health concern since well before 1936, when Labor Secretary Frances Perkins first held a conference on silicosis.

U.S. Silica has always been a prime target of these suits. Within its own factory, safety is intense. Workers aren't allowed on the floor without respirators (nor me, for that matter). Much of the plant has been automated to minimize contact with dust, and vacuums suck up particles. Plastered on every door leading into the plant, and on every bag of silica going out, are giant, neon warnings about the dangers of dust.

The company has nonetheless been militant in defending against lawsuits. This is Mr. Ulizio's history and specialty, having represented silica defendants prior to joining the company in 1991, and then handling U.S. Silica's litigation as its counsel. Says Mr. Ulizio: "There was a decision made here early on, and it was the right decision, that as a sand seller we have no duty to warn, say, the people who work in a foundry. Why? Because foundries . . . know all about silicosis -- there are documents showing that going back to the teens and '20s -- and foundries are the ones who create silica dust or control silica dust, and we have no control over that operation."

Over decades of litigation, the company picked its suits carefully, with an eye to setting broad legal precedents in key jurisdictions. It fought off successive waves of litigation -- in the 1980s from workers at a foundry in Lynchburg, Va., and later from steelworkers in Pennsylvania. Another of Mr. Ulizio's rules was "to treat cases like real cases," a tactic that would prove important in the later Texas litigation. "There is temptation amongst defendants to treat these as a claims process. We tried not to do that, even in cases we settled. We tried to treat each as a real case, where you take depositions, you have people who know what they are doing asking the questions, you demand real medical evidence," he says.

There were losses, some of which made Mr. Ulizio despair. "The first time we ever lost a case in trial, it was 2001. We tried it in Beaumont, Texas, and lost $7.5 million. . . . The judge sat there through the trial reading a newspaper. At one point an objection was made, the bailiff taps him on the shoulder and says 'judge, objection is being made.' He looks at our lawyer and says 'overruled.' The plaintiffs' lawyer raises his hand and says 'no, judge, it was me.' He says 'sustained' and goes back to reading the paper."

As it happens, the industry as a whole lost some big ones around that time, kicking off the tidal wave. "Understand, silica litigation isn't about whether people have silicosis; it's about whether the lawyers can use the legal system to make money. When there is no history of big verdicts, when the legal industry has been losing cases, then it has a limited desire to pursue a big model. But once you had a few settlements and verdicts . . . people got interested," says Mr. Ulizio.

Plaintiffs lawyer firms began sending out direct mailings, running ads, and going through their inventory -- all to gin up big numbers of claims, which they filed against dozens of companies. In 1998, U.S. Silica fielded 198 silicosis claims. In 2001: 1,356. In 2002: 5,277. In 2003: 19,865. The tort lawyers were smart, and filed in former judicial hell-holes like Mississippi, where U.S. Silica hadn't established legal precedents.

Mr. Ulizio painfully remembers those days. The cost of his litigation at one point equaled about 50 cents out of every ton of sand he sold. Credit-rating agencies fretted. Potential hires expressed concern about the company's future, and workers worried they'd lose their pensions. Workers' compensation rates soared. "It was doom-and-gloom bad," he says.

The company was also now a victim of a "mass" tort, designed to force settlements. Mr. Ulizio shares a memo that plaintiffs' lawyer Joe Gibson sent to silica defendants in 2004 with a blunt offer: Settle our 9,000 cases for $900 million, or pay $1.5 billion in pretrial discovery alone, plus an even bigger verdict. "That's the genius of the economics of litigation from the plaintiffs' perspective. Sue a lot of people, sue on behalf of a lot of plaintiffs, get into an adverse jurisdiction, and then don't make too big of a demand, so you can settle it for a relatively small percentage of the cost of defending the case," Mr. Ulizio says.

He didn't settle: He went public. Private companies tend not to air their litigation laundry, but the silica CEO talked to the media, detailed his lawsuit figures, ginned up coverage of the lawyers' tactics. The growing story emboldened other defendants to fight back. U.S. Silica also pushed hard, behind the scenes, to depose, investigate and fight.

The defendants had already made one bold move, receiving permission to aggregate the suits in front of Judge Jack. It raised the stakes, but in retrospect it was what also allowed defendants to connect the nefarious doctor-lawyer dots. "It was very important to the effort, because it allowed us to see the pattern, and present that pattern to the judge," he says.

Mr. Ulizio nonetheless credits a lot of the victory to luck, and mistakes by the other side. "The real advantage was simply that asbestos had preceded us, and the plaintiffs' side overreached. They had asbestos plaintiffs who were diagnosed with asbestosis but not silicosis, rediagnosed with silicosis but not asbestosis, by the same doctor, with the same X-ray. They laid the seeds for their own destruction."

Even with all that, Mr. Ulizio feared they'd lose. "There was no reason to believe Judge Jack would be as good as she was before she was as good as she was," he says. "One of the dirty little secrets of this litigation is that it didn't have to turn out the way it did. All's well that end's well is the cliché, right? First it's got to end well."

The lawsuits are over, but Mr. Ulizio remains furious that no one has been held responsible for the Texas mess. I note that some of the doctors lost their medical licenses. "That's fine," he says. "But at the end of the day, the lawyers are driving this. The lawyers are the ones who make the money. And nobody, absolutely nobody, does anything about it."

So what's the answer? Legislation reining in the tort bar? More Judge Jacks? "The court is part of the system, and its part of the problem. You can say, 'we should have more judicial supervision.' But hey, the judge in Beaumont, Texas, he supervised his court -- he just supervised it the wrong way. I'd also like to think you don't need to legislate everything."

He instead points to legal associations. "It starts with the organized bar. The American Bar Association, the state bar associations, they are supposed to be the self-governing bodies that govern lawyer behavior. Or, state disciplinary boards. If you are creating out of thin air a set of facts that leads you to file litigation, I would like to think that violates some state disciplinary rule," he says. "And look, too, you've got to prosecute crimes. There has to be something that results in a consequence for this behavior," adds Mr. Ulizio.

At times, Mr. Ulizio finds it all a bit surreal. "We mine and sell sand. Sand. That's all we do. We aren't the evil empire. We aren't manufacturing some exotic chemical that we're unleashing on the world. We're taking sand out of the ground. We don't even process it, except to clean it up a little and size it. And we are selling something that has been around forever, the dangers from which have been known since well before anybody involved in this litigation was even born," he says.

He looks at me as if to say, "Can you believe it?" I wish I could tell the tort warrior I couldn't.

Ms. Strassel writes the Journal's Potomac Watch column.