Law and Justice

Posts Tagged ‘U.S.’

On June 28, the Supreme Court ruled that the Second Amendment, which gives citizens the right to bear arms, is not limited by state and local laws. This means that states do not have the power to pass laws that put a limit on the amendment and an individual’s right to carry a weapon.

The controversial topic of gun control is not new to the United States. In fact, it is an issue the country has faced since the days of the Revolutionary War, Prohibition, and even the hippie era.

The following timeline highlights some important landmarks in the history of gun control that lead up to the recent Supreme Court case.

1775: As American try to gain independence, the British limit the amount of gun powder shipped to the colonies. Paul Revere is caught by British on their way to take U.S. weapons at an arsenal.

1822: Bliss v. Commonwealth solidifies peoples’ rights to bear arms to defend themselves. The right to bear arms is seen as an individual right.

1842: State v. Buzzard changes opinion and the right to bear arms is now seen as a political right, not an individual right. The case sends the country into decades of debate over whether the right to bear arms is an individual or collective right.

1856: The well known case of Dred Scott v. Sandford gives African Americans the right to bear arms.

1868: Amid worries that the Southern states were attempting to disarm former slaves, the 14th Amendment is enacted, stating that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

1934: Soon after the repeal of Prohibition and the violent gang related Saint Valentine’s Day massacre, the National Firearms Act is passed, requiring the registration of firearms.

1968: The Gun Control Act makes it illegal for anyone except licensed manufacturers, dealers, and importers to participate in interstate firearms transfers.

1974: The National Coalition to Ban Handguns is founded. It includes labor, religious, and nonprofit groups who support gun owner licensing, firearm registration, and the ban of privately-owned handguns (with a few exceptions) to fight gun-related crime.

1990: The National Coalition to Ban Handguns is renamed the Coalition to Stop Gun Violence.

1993: The Brady Act requires federal background checks to purchase guns in the United Sates.

1994: It becomes illegal to sell assault weapons to civilians, according to the Assault Weapons Ban.

2007: Background check requirements are added to by the NICS Improvement Amendments Act.

2008: The Supreme Court rules, in District of Columbia v. Heller, that the 2nd Amendment allows individuals to cary firearms in federal enclaves. The ruling does not make it clear whether the decision also applies to states.

2010: The Supreme Court rules that the 2nd Amendment is not limited by state and local laws and that individuals have the right to bear arms.

This summary is only the beginning. The history of American government and laws is very interesting, in depth, and pertinent to today’s rulings. Both the criminal justice and legal industries are full of exciting information and opportunities.

A World War I memorial will be allowed to stay in the Mojave Desert, and though covered since 2002 because it offended some people as a religious symbol is now unveiled again. It was the United States Supreme Court that allowed the Cross, on private land owned by the Veterans of Foreign Wars to stay after a protracted controversy. The Cross has stood for about 75 years in the desert. The question came to, Is the Cross religious symbol for Christians solely, or War Memorial for American dead?

In California and even San Francisco’s Bay Area the subject of a cross in a remote desert spot in the Mojave was a highly controversial matter. What about the cross on public land? Does this not violate separation of Church and State? was hotly asked.
 
A religious symbol cannot be on public land, said Frank Buono who is now retired from the Park Service. He brought the case to The Supreme Court over a ten year period with the help of The American Civil Liberties Union. According to The New York Times, “The white wooden cross, roughly 5 feet tall, stands atop Sunrise Rock in California’s San Bernardino County.” It is actually made of pipe today. The Supreme Court did not say whether this was a simple, dignified, and even popular War Memorial of little note but some popularity among the private individuals who visited it, and those who built it. The Court took on this almost humble case that to some appeared overblown.
 
A PDF of the Supreme Court decision is here.
 
The announcement of the Court’s result was made and reported in major newspapers April 28, 2010. Writing for the Supreme Court in Salazar v. Buono, Justice Anthony M. Kennedy said:
“The District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”
 
The Veterans of Foreign Wars agreed. One could easily surmise that’s the real issue, the real case from their vantage point. Many veterans agreed.
 
Gabriel Nelson, writing in his blog in The New York Times, said, “The Supreme Court ruled today that Congress and the Interior Department acted properly when they used a land transfer to solve a dispute over a cross on display in the federal Mojave National Preserve.”
 
There was no big hullaballoo, but a minimal statement with dissent by the Supreme Court. Gabriel Nelson put it well in his low key remark on how the Interior Department had acted properly. This writer has taken some snippets from other newspaper reports that demonstrate all are in accord in their reporting of the facts, and as the Supreme Court noted it was the facts that led them to their conclusions on the decision.
 
In its brief on behalf of Interior Secretary Ken Salazar, Solicitor General Elena Kagan said the cross did not imply government sponsorship. The transfer of land to the Veterans of Foreign Wars that required the installation of a plaque dissociating the statue from the federal government, she wrote, satisfied the problem of Church/State religion (Christian).
 
The Christian Post said in its report, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”
 
As a taste of the real argument in differences on the United States Supreme Court, it appears to this writer that Justice Anthony Kennedy caught the essence of the issue separating Justices. The Wall Street Journal noted in their report, Justice Stevens’s dissent argued that Congress wasn’t taking action to memorialize veterans, but rather using their memory to justify maintenance of a religious symbol. He noted that the Mojave cross little resembles the prominent and nonsectarian markers erected for those who served in World War II, Korea or Vietnam.
 
JESS BRAVIN Wall Street Journal writer pointed out in his article, The cross—estimated at five to seven feet tall—stands on Sunrise Rock in a remote patch of desert. Veterans, some of whom had moved to the region for health reasons, first erected a cross at the site in 1934 and it was often used for Easter services. The current version was assembled from painted metal pipes in 1998 by Henry Sandoz of Yucca Valley, Calif.
 
Though The Wall Street Journal called the decision one whereby the Cross was determined more war memorial than religious symbol, the grass roots battle in California called for many statements that: Yes, it was significantly and first a war memorial, but it was a religious statement for the war dead. There the Supreme Court did not necessarily agree, but it did not make sweeping decisions. Justice Kennedy wrote, Because of the “highly fact-specific nature” of the case, it is “unsuited for announcing categorical rules.”
 
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Stevens’s dissent. Justice Stephen Breyer dissented separately.
 
Images:  (1) Mojave Desert Cross, by Associated Press; (2) Mojave Desert Cross, by unknown.

If you’ve read it, you may have noticed that the U.S. Constitution, in designating how representatives were to be apportioned by population, excluded “untaxed” Indians, and counted each black slave as three fifths of a person. That’s in the first couple paragraphs, by the way. Fortunately it was changed when the 14th amendment was ratified.

Obviously the writers had the prejudices of the times they lived in. The lesson here is that we cannot create a perfect constitution that will stand the test of time. To think so is to think we have nothing to learn. Any document that is so important will need to be changed as we learn more and progress in our political and moral ideas.

Of course it could be dangerous to create an entirely new constitution, given the politics that would go into writing and ratifying it. Still, if we were to do so, what should it include? I can think of many changes that I would like to see, including an electoral process that is less based on geography and more on citizens political beliefs. In such a system, representatives would be elected not by districts but by voters across the country who share common political causes or goals.

But apart from the specific provisions throughout a new constitution, there is one important change that I would like to see right up front: A declaration of purpose and intent. The current document governing the United States is vague enough that there are many “gray” areas. The result is laws that may or may not be unconstitutional, based on differing interpretations. Differing interpretations are inevitable to some extent, but a clearer statement of purpose would resolve much of the confusion. An example follows.

A New Constitution – Preamble

“The government of the United States has only the powers specified in this constitution, and may not do anything which is not explicitly authorized by this document. The intent of this document is to protect the rights of individuals within the country, both citizens and all others, and that is the only valid purpose of government. When the United States government acts outside its borders, it must still act in accordance with this constitution, and refrain from violating the rights of individuals. This is in recognition that rights are not a gift of government, or an earned privilege, but are inherent in every human being.”

The idea here is to state plainly what the intent of the constitution is and what the proper purpose of the government is. This makes it much easier to determine when a law is allowable or unconstitutional. Combined with the clear enumeration of powers laid out in the rest of the document, there would be much less room for mis-interpretation than there currently is.

It also makes it clear that rights are not a matter of citizenship. Any and all who are within the jurisdiction of the government are to have their rights respected and protected. Also, the government cannot violate an individual’s rights just because that person is not within the borders of the country.

Finally, this preamble states that government power is limited. The current United States Constitution is supposed to do this as well, but is vague in many ways. A new constitution should state plainly what the government is allowed to do, and should require that all new laws specify the constitutional clause that authorizes them. This will prevent much of our useless legislation, and help prevent an abuse of power on the part of the government.

With mesothelioma lawsuits, as with all areas of law, persistence is key – on both sides. Case in point: Travelers Insurance Company, the primary insurer for Johns-Manville Corporation from 1947 – 1976.    

Once the largest miner and manufacturer of asbestos and asbestos products, Johns Manville Corp. filed for bankruptcy in the 1980s, after the dangers of asbestos were exposed to the public. In the process, a trust fund was created for future victims of its asbestos products and Travelers Insurance contributed $80 million at that time. Later, in 2003 and 2004 through pressure in the courts, Travelers agreed to $500 million in settlements with several groups of plaintiffs, with the stipulation that future asbestos lawsuits would be barred. The settlement was approved in 2006.  

But last year, this settlement was overturned by a U.S. Court of Appeals on the ground that the judge who approved the settlement lacked authority to bar new lawsuits. In June of 2009, the U.S.  Supreme Court reversed this decision in a 7 – 2 vote, bringing the status of the case back to the 2006 settlement. Writing for the majority, Justice David Souter said the judge’s orders barred state civil actions against Travelers based on allegations of its own wrongdoing while acting as Johns-Manville’s insurer, due to the finality of the 1986 orders that established the bankruptcy trust fund.

In this series of lawsuits persistence was key for both the plaintiffs and the defendants. The mesothelioma settlement for several groups of plaintiffs went from $80 to $500 million – a substantial victory! At the same time the persistence from the defendants led to the barring of future litigation. Agreeing to half a billion dollars in a settlement to secure no future lawsuits was considered “worth it.”

As with any area of law, precedence is key and the precedent set by this series of litigations gives hope to victims filing their own mesothelioma lawsuit. However, it also demonstrates that once a person is diagnosed with mesothelioma, legal action must be taken quickly, since sometimes, as in this case, the court grants that further suits against the same company will be barred.  

Until a case is settled by the supreme court, it can be overturned in a court of appeals, just as this case was. Your own mesothelioma settlement will take persistence from you and an experienced attorney.

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law. This Act outlaws “discrimination in compensation” which is broadly defined to include wages and employee benefits. The Ledbetter Act, by legislation, overturns the U.S. Supreme Court’s May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. That decision required workers to file charges on a pay discrimination claim within the first six months of receiving their first discriminatory paycheck.

Ms. Ledbetter was a longtime supervisor at a Goodyear tire plant in Alabama. When she discovered that she was paid significantly less than male supervisors, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) for gender-based pay discrimination under Title VII. Ms. Ledbetter won in the trial court. However, on appeal, the U.S. Supreme Court dismissed Ms. Ledbetter’s claims. It held that, although there was unlawful discrimination, Ms. Ledbetter failed to timely file her Charge of Discrimination because she did not file within 180 days of the first time her paycheck was less than her male counterparts. The Supreme Court took this position even though Ms. Ledbetter was not aware of the discrimination during this time period and, accordingly, it would have been impossible for her to meet this standard.

The Ledbetter Act fixes this widely criticized decision which, in effect, prevented many injured employees from exercising their civil rights. The new Act adopts a “pay-check accrual” test that had been used by many EEOC offices prior to the Supreme Court decision. This provides a new statute of limitations which makes clear that each new paycheck is a violation of law if it results “in whole or in part” from a discriminatory pay decision in the past. Employers will be liable for damages for discriminatory pay practices for the two years preceding the filing of the EEOC Charge of Discrimination.

The new Act actualizes the promise of providing a level playing field by requiring that employers establish compensation systems that are color and gender blind and gives employees the means to challenge employers that do not play by these rules. This new legislation will result in the increase the filing of wage discrimination claims because it opens the door that had been slammed shut by the U.S. Supreme Court decision. Notably, in Michigan, employees have 300 days to file with the EEOC. Smart employers will examine their compensation practices to assure that they are non-discriminatory and reward equal work with equal pay.

As in any empoloyment law case, it is in your best interest to contact an employment discrimination lawyer for professional legal assistance.

“Original Intent” is a book by David Barton about Supreme Court rulings that have stripped the Constitution of the founders’ original meaning.  It was published in 2000 by WallBuilders of Alemedo, Texas.

<b>David Barton Argues Against<br>

Separation of Church and State</b>

The book emphasizes religious aspects of the Constitution, especially the doctrine of separation of church and state.  Mr. Barton attempts to show this was not part of the original intent of the founding fathers.  

The author discusses eight Supreme Court landmark religious liberty cases which followed the 1947 Everson case.  The latter introduced the “wall of separation” terminology.  In these he claims the Supreme Court rewrote the original intent of the founders. 

Later chapters demonstrate how the new subjective standard of judicial opinion is altering the Constitution and Constitutional law in fundamental ways. The law is in a state of flux because the Constitution has become whatever the justices say it is. This new era of positivistic law began in the 1930s and 1940s.

<b>Thesis Is Flawed</b>

The problem with the book is a flawed thesis. The founders did in fact intend to separate the new government from the authority of biblical law.  Surprisingly, David Barton actually applauds this.

David Barton states that “there is simply no historical foundation for the proposition that the Founders intended to build the ‘wall of separation’ that was constitutionalized in Everson…” (p.179).  The actual words, “wall of separation” do not appear, but the wall is nonetheless set in place by Article VI, Section 3.

This provision disestablishes Christianity as the “coin of the realm” so to speak.  When the Constitution says that “no religious test shall ever be required for any office…,” it makes it illegal to require an officeholder to swear to govern by the Bible.  It thus established the U.S. Constitution as a pluralistic and secular document.  This is clearly a “wall of separation,” divorcing the legal system from its religious foundation.

David Barton alludes to Article VI, but praises its effect. He asserts that, “…it was therefore not within the federal government’s authority to examine the religious beliefs of any candidate” (p.34). He adds with approval that “The Founders believed that the investigation of the religious views of a candidate should not be conducted by the federal government, but rather by the voters in each state.”

That is the heart of our problem. A declaration of religious neutrality by the Federal government. This would be like Moses coming down from Mt. Sinai and declaring that he wasn’t going to favor any particular religion, but would leave it to the tribes.

On the contrary, it is the primary duty of government to require that its officials are committed to Christ and the Christian religion.  It is cultural suicide to neglect this duty.  The law of God is the only source of justice, and God expects the officeholder to swear to uphold it.  David Barton fails to grasp this most basic biblical principle of civil government.

<b>Innocuous Civil Religion</b>

David Barton and the founders prefer a milquetoast civil religion, rather than undiluted Christianity.  To quote the author, “I agree fully to what is beautifully and appropriately said in Updegraph v. The Commonwealth… — Christianity, general Christianity, is, and always has been, a part of the common law: ‘not Christianity founded on any particular religious tenets’ …(p.70)”

“The Christianity practiced in America was described by John Jay as ‘enlightened,’ by John Quincy Adams as ‘civilized,’ and by John Adams as ‘rational.’” (p.127).  As long as Christianity remains a toothless, feel-good religion, devoid of doctrine, David Barton and the founding fathers are apparently happy with it.

And this leads to another root problem.  David Barton virtually always refers to civil government in terms of what it must not do respecting separation of church and state.  He ignores the responsibility government has to govern pro-actively in submission to Biblical law.  As noted above, his Christianity is toothless when it comes to obligations for the civil magistrate.

This rejection of God and Biblical law as the basis for the new government leads inevitably to disregard for the Constitution we see today.  When they rejected the absolute standard, the founders guaranteed that their posterity would end up adrift in a sea of subjectivity and oppression.

In the end, Mr. Barton calls for a return to the “original intent” of the founders to create a limited government based on Christian principles. But the flaw in his thesis makes this impossible.

Departure from the original intent of the Constitution is not our problem. Rather, our problem lies in the seeds of humanism and religious neutrality that were planted originally in the Constitution and are bearing their evil fruit today.

Chemical, pharmaceutical, and biotechnology companies and inventors spend countless number of hours and a lot of money to come up with a drug for curing killer diseases like cancer or diabetes or a new catalyst to make a wonder plastic. They protect their inventions by securing a patent.

For one reason or another, the patent owner may not be ready to make or sell the patented invention. The patent owner, for example, University or individual inventor, may be thinking of licensing the invention to another who can market the invention, and collect royalty payments rather than undertake efforts to secure financing necessary to bring their works to market themselves. However, much to the patent owner’s surprise and anger, it may notice an infringer illegally making and selling the invention. Can the patent owner go and automatically get an order to halt the infringer’s operations? The answer may be surprising. The courts are not always sympathetic to the patent owner.

In the recently decided fight between internet giant eBay and another company Mercexchange, who owned a patent for doing business on the web, Justice Clarence Thomas, speaking for the United States Supreme Court, ruled that the patent owner, besides showing that the patent has been violated, must prove that a number of things are lining up in its favor before it can stop the infringer. This is a dramatic departure from the earlier lower court ruling that, except in rare situations, a court should automatically issue an order to halt the infringer’s operations.

To succeed in stopping the infringer’s operations, Justice Clarence Thomas, writing for the Supreme Court, said that the patent owner must show that the patent owner has suffered beyond repair by the actions of the infringer; that money cannot compensate for the infringer’s actions; how the patent owner’s hardship outweighs the hardship of the infringer; and that public interest would not be served by stopping the infringer. This is commonly called the “four-factor test”.

In proving that things are lining up in his favor, one question that would come up is how strong the patent is – i.e., can it survive an attack on its validity. A weak or vague patent is of little use. In the words of Justice Anthony Kennedy, “the potential vagueness and suspect validity of … the patents may affect” the outcome.

Securing a strong patent is not trivial. It is important that the patent is filed promptly and accurately. If the patent was filed long after the invention was published in a magazine or displayed as a poster, its validity or vitality comes into question. Or the patent may have been filed promptly but the patent may not cover the invention adequately. In some instances, important information may have been hidden from the Patent Office. To succeed in stopping the infringer, or getting a sizable royalty or settlement, it is critical that the patent is strong and robust.

On March 3, 2009 the United States Supreme Court ruled a damaging verdict to the pharmaceutical industry and a good verdict for consumers. A 6-3 decisional vote by the Supreme Court in the case of Wyeth vs. Levine upheld the right for patients to sue drug manufacturers for complications arising from the use of a prescription drug despite the drug’s approval from the Food and Drug Administration. The Wyeth pharmaceuticals company pressed the Supreme Court to dictate that any patient who is injured by the use of an FDA approved prescription cannot file suit against the manufacturer of the drug giving that manufacturer immunity from prosecution. However, the Supreme Court rejected this plea stating that Congress never intended to enact a sweeping law to preempt personal injury claims against drug makers and that personal injury claims against drug manufacturers helps to improve the public health and federal safety laws in the area. At Rosen Louik & Perry, we couldn’t agree with the Supreme Court more in this case.

In early 2000, musician Diana Levine was awarded $6.7 million dollars in damages by a Vermont state court for the loss of her lower right arm due to the intravenous application of the FDA approved drug Phenergan. Known in its generic form as promethazine, is an antihistamine used to treat allergic reactions and was approved for intravenous injection by the FDA in 1995. Unfortunately, the administration of the chemical into Levine’s artery caused an onset of Gangrene which forced an eventual amputation of the limb. In her personal injury lawsuit Levine accused Wyeth of failing to properly warn consumers of the dangers and complications that could arise from the use of Phenergan. Wyeth countered the suit stating that the FDA’s approval should be the final word on the drug’s safety and terms of use and drug manufacturers, Wyeth included, should be exempt from responsibility. In, 2009 they appealed the case to the US Supreme Court in an effort to have the ruling overturned. To their dismay it was not and as a result Wyeth ceased the production of Phenergan.

Despite the FDA’s most sincere efforts to keep people safe from harmful drugs, there have been and will continue to be instances in which hazardous medicines slip into the public market. It is the responsibility of the drug manufacturer to test their products and ensure that consumers have proper knowledge of all significant impacts of the drug. Each year more than 70,000 serious injuries and over 15,000 deaths result from routine utilization of prescription medicines in the marketplace. These victims and their attorneys hold drug manufacturers accountable to insure this doesn’t happen to more people.  The FDA needs to rigorously monitor the use and application of current drugs on the market and evaluate cases of related complications justly. In a situation in which a person is harmed by the use of an FDA approved drug the proper action must be taken against the parties responsible. It is important to choose the right attorney to represent the offended party. Our personal injury attorneys specialize in this area and are well equipped to accurately evaluate the merits of each case and establish the best legal strategy for acquiring the reparations that are due.

Do not waste time when deciding to file a personal injury suit. Statutes of Limitation generally limit the time to file a personal injury suit to 2 years and it is always advantageous to file sooner than later to keep memory of the events most accurate.

Rosen Louik & Perry has been representing plaintiffs in personal injury cases for over 70 years. We have expert attorneys who will fully dedicate themselves to your case and help you obtain the best results possible. If you or someone you know has recently been injured from the administration of a prescription drug or FDA approved product please contact our firm today for a free consultation and case review.