BuckeyeBlog

A couple weeks ago, I posted here regarding the Manhattan Institute’s recent report on the improvement Ohio has made in reforming its civil liability laws. The report briefly mentions two cases in which the Ohio Supreme Court upheld recently enacted reforms of Ohio’s tort system. I discuss those two cases in more detail in the just released summer issue of the Federalist Society’s State Court Docket Watch (the article on the Ohio cases begins on page 2 under “Case in Focus”). As the Manhattan Institute’s report indicates, the recently enacted tort reforms, including placing caps on pain and suffering damages and time limits on liability, are critical if Ohio is going to be successful in making the state attractive again for investment and business activity. Interestingly, in one of the recent cases, Arbino v. Johnson v. Johnson, the portion of the decision upholding the cap on pain and suffering damages was by a 5-2 majority. Two of the justices in the majority, Justice Evelyn Lundberg Stratton and Maureen O’Connor, are up for reelection in 2008. If they are defeated and replaced by more activist justices, the court might then have a majority that would be willing to strike down the caps on damages enacted by the General Assembly. That would be a major step backward for Ohio.

A solid piece from Julie Carr Smyth on the bumble-squared fiasco that erupted at the top levels of Ohio government earlier this year, when Attorney General Marc Dann bumbled his office administration and Ohio officials at all levels bumbled their response to it.

The problem, as Smyth’s piece develops, is that now the standard of government is “we’ll run around in a panic of self-interest whenever the press or anything else drives us to it.”

Seasoned observers may say it has always been so, but nonetheless, a government that is not based on law is beyond troublesome. It’s dangerous. Split, 5-4 and 4-3 decisions of high courts are a tremendous part of the problem, and so are incidents like the Dann scenario, where everyone concluded he should be hanged, they just were not quite sure for what, or when or, as far as the law goes, why. (more…)

The Center for Legal Policy at the Manhattan Institute manages Trial Lawyers Inc., which does excellent work documenting the crisis in America’s tort system. Its most recent report Judging Ohio: Legal Reforms are Steering Ohio’s Struggling Economy in the Right Direction documents Ohio’s checkered past in trying to reform the personal injury lawsuit system. On numerous occasions, the General Assembly enacted significant reform of the system only to see its efforts invalidated by an activist majority on the Ohio Supreme Court. In recent elections, however, justices who take a less activist role toward public policy matters have been elected to the court. As I wrote in this Buckeye Institute commentary this past spring, the court now has a majority that recognizes the Ohio Constitution authorizes the General Assembly to enact legislation through its lawmaking function, including enacting reforms to the civil liability system. In two recent cases, the Ohio Supreme Court upheld statutory caps on pain and suffering and punitive damages and a 10-year statute of repose for products liability actions.

Two of the justices who make up the new majority committed to judicial restraint are up for reelection in November. The Manhattan Institute’s report raises the ugly possibility of the personal injury trial lawyers  (a.k.a. “Trial Lawyers, Inc.”) regaining the upper hand on the court:

[S]hould Trial Lawyers, Inc. recapture the state supreme court, the legislature’s hard-earned reforms could be reversed in short order. With incumbent justices Maureen O’Connor and Evelyn Lundberg Stratton up for reelection this year, all eyes will be on what promises to be another hotly contested battle. The Buckeye State faces a daunting task in restructuring its industrial economy. Fortunately, it has already embarked on that task by making improvements in its legal climate. The people of the state, having finally been exposed to both sides of the issue in heavily publicized races, have reclaimed their justice system; they can ill afford to let it return to the days when it was a paradise for Trial Lawyers, Inc.”

In honor of Independence Day, here is the full text of the Declaration of Independence. The Declaration is always worth reading on the Fourth of July between the picnics and fireworks just so we remember why we are celebrating.

Thomas Mitchell wrote an interesting column this week in the Las Vegas Review Journal placing the Declaration of Independence in its historical context and then wondering whether the American people still share those same ideals today.  Mitchell writes:

Today Americans whine about FEMA not coming quickly enough to the rescue, demand bailouts for those who took out home loans they could not afford, complain about Congress and the president letting gasoline prices soar, cheer a candidate who talks about the nation in collectivist terms, and are ready to raise taxes on everyone else.

At the time of the Revolution, it is estimated the typical tax burden — with or without representation — was 20 cents per capita per year at a time when annual earnings were somewhere between $60 and $100. Today the total tax burden is upward of 40 percent.

We plan to reprint the Declaration of Independence Friday on the editorial page. But I must wonder if we have lost that American mind-set that Jefferson cherished. How many of us are still willing for the sake of true liberty to pledge “our Lives, our Fortunes, and our sacred Honor”?

Today’s Columbus Dispatch ran E.J. Dionne’s screed about the conservative justices on the U.S. Supreme Court engaging in activism to reach the decision in the Heller case, striking down Washington D.C.’s handgun ban as unconstitutional. While he throws the term “activism” around, Dionne does not define the term in any meaningful way. Fortunately, the Federalist Society’s blog regarding the recent Supreme Court term includes an interesting discussion about “activism.” Ed Whelan, president of the Ethics and Public Policy Center, provides a useful definition: “the term ‘judicial activism’ succinctly captures the Court’s wrongful invasion of the realm of representative government and the injury that invasion inflicts on the powers of American citizens.”

Under this definition, the U.S. Supreme Court has engaged in liberal judicial activism on numerous occasions, including perhaps most prominently in Roe v. Wade. Regardless of how you feel about abortion as a policy matter, the Roe v. Wade majority went out of its way to invent a right to abortion that is nowhere to be found in the text of the Constitution and effectively struck down state laws regulating abortion across the country. Even liberal scholars agree that the reasoning of Roe is indefensible. (more…)

Mike Maurer is right about the fact that follow-up litigation will be necessary to define the scope of the Second Amendment’s individual right to keep and bear arms. While Heller is a landmark case in that it recognizes the Second Amendment as protecting an individual right, it also is fairly limited, at least on its face, in its application. In the majority opinion, Justice Antonin Scalia writes that “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” In discussing regulations of the right to keep and bear arms that might be permissible, Scalia avoids speculating about them, writing “there will be time enough to expound upon the historical justifications” for such regulations “if and when those exceptions come before us.”

The ban struck down in Heller was a District of Columbia law. Another issue left undecided by Heller is whether the Second Amendment protects an individual’s right to keep and bear arms against state or local regulations similar to the DC law.

We may get answers to some of these questions sooner, rather than later, as lawsuits are planned challenging gun restrictions in Chicago and San Fransisco.

Thomas Suddes wrote this op-ed in Sunday’s Columbus Dispatch regarding the Ohio Supreme Court’s recent decision to compel Ohio Secretary of State Jennifer Brunner to appoint Brian K. Daley to the Summit County Board of Elections. The Summit County Republican Party Executive Committee recommended Daley after Brunner refused to appoint the committee’s first choice, Alex Arshinkoff.

Despite Suddes’ claim that the court deployed “activism” in reaching its decision, the reality is that the court was presented with a statute that is ambiguous as it relates to the relative roles of the county political parties and the secretary of state in appointing members of the county boards of elections. The justices used their interpretive skills to effectuate an outcome that is consistent with the text and intent of the statute.

This is nothing compared the court’s past activism. During the 1990s up until 2002, the Ohio Supreme Court regularly found itself in protracted battles with the General Assembly by striking down laws related to school funding, tort reform, workers’ compensation reform and other public policy matters. Today, following a series of retirements and subsequent elections, a majority of the court has emerged that respects the doctrine of separation of powers and recognizes the authority the Ohio Constitution gives the General Assembly to enact public policy. Two justices - Maureen O’Connor and Evelyn Lundberg Stratton - who are part of that current majority - are up for re-election this year. Accordingly, the November election will help determine the future direction of the Ohio Supreme Court, including whether it will maintain its current path of acting with restraint from the bench or return to its activism of the past by regularly second-guessing the policy decisions of the General Assembly.

When politicians are promoting “economic development” policies they always claim that they will result in a huge amount of investment in a community, hundreds (or thousands) of new jobs, more tax revenue, and on and on. Of course, these promises are hard to verify and often don’t pan out. This is true in perhaps the most visible case of “economic development” — the eminent domain action in New London, Connecticut, that produced the infamous Kelo decision from the Supreme Court.

Since the government bureaucrats who were stealing taking for public use the property of others won the case, what has happened? Not too much, it seems:

Like so many other projects that use eminent domain and rely on taxpayer subsidies, New London’s Fort Trumbull project has been a failure.  After spending $78 million in taxpayer dollars, the city of New London and the private developer have engaged in no new construction since the project was approved in 2000.  Indeed, since the property owners disputing the takings owned less than two acres in a 90-acre project area, the city has always had a vast majority of the land available for development.  Yet, no new development has occurred.  The preferred developer for part of the site, Corcoran Jennison, recently missed its latest deadline for securing financing for building on the site and was terminated as the “designated developer.”

“New London’s Fort Trumbull project has been an unmitigated disaster,” said [Institute for Justice] Senior Attorney Dana Berliner, who litigated the Kelo case with Bullock.  “Despite the infusion of close to $80 million in taxpayer funds and three years elapsing since the Kelo decision, there has been no new construction in the area and nothing to show but brown, empty fields.  The developer was so desperate for funding that it applied to the federal Housing and Urban Development agency to obtain taxpayer-subsidized loans to build luxury apartments on the land where Susette’s neighborhood once stood.

As this case illustrates, it’s a good idea to be very, very skeptical of politicians who are promising huge economic benefits from government meddling.

H/T Reason magazine’s Hit & Run blog.

The Cleveland Plain Dealer is upset with the Domestic Relations Division of the Cuyahoga County Court of Common Pleas . Too much delay. The state chief justice is investigating.

That’s no doubt a good thing. But I couldn’t help thinking of this guy, whom I heard testify last year before the General Assembly , and has been waiting seven years to have his civil trial resolved. He did get one ruling in his case: His insurance company was let out promptly, with a ruling that it didn’t have to pay his bills. (Talk about your basic moral hazard.)

So is the chief justice going to crack the whip all around, or just selectively?

The AP reports that the central government of the People’s Republic of China is requiring its agencies cut spending by 5% in response to the recent earthquake. Compare that to the $1.5 billion spending increase Ohio’s politicians are currently pursuing in the name of “stimulating” our state’s economy.

A country raised on Mao’s Little Red Book shames Ohio’s political class through its vigorous embrace of limited government.