Results matching “Reform Michigan Government”

A better solution to prison overcrowding - PointOfLaw Forum

On Monday, Attorney General Eric Holder announced proposed prison reforms aimed at reducing the population of the nation's overflowing ­federal prisons. Holder cited figures that show the federal prison population has grown almost 800 percent since 1980. "With an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter and rehabilitate, not merely to warehouse and forget," he said.

Holder's solution? Stop prosecuting federal crimes. Holder directed all federal prosecutors across the country to stop charging low-level, nonviolent drug offenders with offenses that impose severe mandatory sentences. But there is a far more effective way to reduce the prison population: slash the number of federal crimes. Yes, mandatory sentencing is part of the problem, but the larger culprit is the explosive growth of federal criminal laws. There are 4,500 federal crimes on the books, with new ones being added at a rate of about 500 a year. The laws are deliberately vague, giving prosecutors maximum discretion "to intimidate decent people," as syndicated columnist George Will has observed.

Until relatively recently, ordinary criminal law was almost exclusively the province of state authorities. And with good reason: under the U.S. Constitution, the federal government has only limited power over crime, generally covering things like treason, piracy, and counterfeiting.

How the federal government managed to expand its criminal jurisdiction would come as a surprise to most Americans. Most federal criminal laws are justified under Congress's power to regulate interstate commerce. And so, for example, the courts have allowed the federal government to prosecute arson cases involving apartment buildings on the grounds that the real estate market is part of interstate commerce. But of course the use of the commerce clause is the merest pretext: nobody thinks that Congress was trying to regulate the real estate market by making arson a federal crime.

The Founders did not establish our two-level federal system on a whim. They did it to protect individual liberty. In Federalist 51, Madison argued that federalism (along with separation of powers) would create "a double security . . . to the rights of the people." Constitutional scholar Akhil Reed Amar has argued that the states can "act as a remedial cavalry" by riding to the rescue of citizens victimized by federal power. That's true in a general sense, but given the supremacy of federal law, the states are powerless to help those citizens prosecuted under federal statutes. The nearly un-checked power of federal prosecutors has led, inevitably, to abuse.

Consider the 2002 conviction of Arthur Andersen, which put tens of thousands of innocent people out of work, only to be overturned on appeal. In 1994, a Michigan property developer was arrested for having contractors excavate some sand and place it in a ditch--all on his property--without seeking approval from the Army Corps of Engineers. For this dastardly crime, federal prosecutors sought a sentence of sixty-three months--more than five years. The trial judge flatly refused to put a man behind bars for "mov[ing] some sand." The government appealed, and the case was ultimately settled.

It's true that Holder cannot unilaterally take federal laws off the books -- only Congress can do that. But neither Holder not his boss, President Obama, seem troubled by the unconstitutional breadth of federal criminal law today. Instead, they blame prison overcrowding on racism.

In a speech at the annual meeting of the American Bar Association in San Francisco, Holder cited a recent "deeply troubling report" indicating that black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes. That is troubling - but it's not the root cause of overcrowding; besides by taking aim at mandatory sentences, Holder is targeting the one part of the justice system that is necessarily color-blind. We won't improve the sorry state of federal prisons while this administration refuses to concede that the real cause of prison overcrowding is rampant over-criminalization.

This post was originally published on

Links - Links

FEATURED SITES: - chronicles the high cost of the legal system through synopses of news articles on frivolous lawsuits, with links provided.

Manhattan Institute Center for Legal Policy - Our host organization, the Center for Legal Policy develops and communicates thoughtful ideas on the civil justice system and its reform to real decision-makers. The CLP's parent institution, the Manhattan Institute, is a think-tank whose mission is to develop and disseminate new ideas that foster greater economic choice and individual responsibility.

Legal Reform Now - A clearinghouse for legal reform information including news, research, new and pending cases, and state and federal legislation. A project of the U.S. Chamber of Commerce Institute for Legal Reform, sponsored by a diverse coalition of associations, chambers of commerce, think tanks, and state-based legal reform groups.

American Justice Partnership - A project of the National Association of Manufacturers, the nation's largest industrial trade association, the American Justice Partnership brings together leading national and state organizations to coordinate the fight for effective legal reform.

Trial Lawyers, Inc. - Trial Lawyers, Inc. is the Manhattan Institute's 2003 annual report of the litigation industry, which sheds light on the industry's size, scope and inner workings.


American Tort Reform Association - ATRA is a broad-based, bipartisan coalition of more than 300 businesses, corporations, municipalities, associations, and professional firms who support civil justice reform.

Chamber of Commerce Institute for Legal Reform - Affiliated with the nation's largest business organization, the ILR argues for legal reform at the national and state levels.

Common Good - Common Good is a bipartisan initiative to overhaul America's lawsuit culture.


American Legislative Exchange Council Civil Justice Task Force - The legal reform task force of this organization of conservative state lawmakers works to promote systematic fairness in the courts through bills to discourage frivolous lawsuits, to fairly balance judicial and legislative authority, and to treat defendants in a consistent manner.

The Business Roundtable Civil Justice Reform Task Force - An association of chief executive officers of leading U.S. corporations with a combined workforce of more than 10 million employees in the United States, the Business Roundtable develops policy options and implements action plans to address the civil liability crisis.

Citizens for a Sound Economy Lawsuit Abuse - This grassroots organization has fought and won legal reforms at the federal level and the state level.

HALT - HALT is a nonprofit, nonpartisan, public interest group dedicated to the principle that all Americans should be able to handle their legal affairs simply, affordably and equitably.

National Association of Manufacturers Fair Litigation Action Group - FLAG focuses on the importance of fair liability laws and what legal reform measures are needed to achieve this goal.

National Federation of Independent Business - NFIB fights for legal reform that levels the courtroom playing field for small business.


Citizens Against Lawsuit Abuse - These state and local nonprofit, grass roots organizations are dedicated to putting an end to lawsuit abuse by educating the public on the effects of lawsuit abuse to create a climate for civil justice reform.

Central California Citizens Against Lawsuit Abuse Los Angeles Citizens Against Lawsuit Abuse Orange County Citizens Against Lawsuit Abuse
San Diego County Citizens Against Lawsuit Abuse
Silicon Valley Citizens Against Lawsuit Abuse

Houston Citizens Against Lawsuit Abuse
Texans Against Lawsuit Abuse

Louisiana Citizens Against Lawsuit Abuse

Business Council of New York State - The Business Council of New York State tort reform committee works to reform New York's civil justice laws.

Civil Justice Association of California - CJAC is a coalition of citizens, taxpayers, businesses, local governments, professionals, manufacturers, financial institutions, insurers, and medical organizations dedicated to improving California's civil liability system.

Illinois Civil Justice League - ICJL is a coalition of Illinois citizens, small and large businesses, associations, professional societies, not-for-profit organizations, and local governments working for fairness in the Illinois civil justice system.

Illinois Lawsuit Abuse Watch - I-LAW is a grassroots watchdog group of concerned citizens, community leaders, small business people and non-profit organizations dedicated to educating the public about the widespread costs of lawsuit abuse.

Michigan Lawsuit Abuse Watch - M-LAW serves as a public watchdog over the state's court system. Its goal is to eliminate the many negative effects that lawsuit abuse has on families, job providers and communities.

Mississippians for Economic Progress - The mission of Mississippians for Economic Progress is to foster economic progress for all Mississippians by promoting a fair legal system.

New Yorkers for Civil Justice Reform - New Yorkers for Civil Justice Reform is a diverse and broad-based statewide coalition seeking reforms needed for a civil justice system that is fair for all New Yorkers.

Ohio Businesses for Legal Reform - Ohio Businesses for Legal Reform (OBLR) is a coalition of key business leaders joining together to highlight and combat inequities in the civil justice system. Members include small, medium and large businesses as well as local chambers of commerce and not-for-profit business associations striving to proactively change the business climate in Ohio.

Tennesseans for Legal Reform - TLR is a statewide, bipartisan coalition of nearly 500 businesses, corporations, municipalities, associations, individuals and professional firms that support civil justice reform.

Texans for Lawsuit Reform - TLR works to restore balance and justice to the Texas civil justice system.

Texas Civil Justice League - The TCJL works to restore fairness and stability to the Texas civil justice system.


AEI-Brookings Joint Center for Regulatory Studies - This joint effort of the American Enterprise Institute and the Brookings Institution attempts to hold lawmakers and regulators accountable for their decisions by providing thoughtful, objective analyses of existing regulatory programs and new regulatory proposals.

Cato Institute - The libertarian think tank often publishes studies and opinion pieces consistent with its mission to secure liberty through limited government and the rule of law.

Mercatus Center - The Mercatus Center at George Mason University is a research, education, and outreach organization that works with scholars, policy experts, and government officials to connect academic learning and real world practice in the promotion of free market solutions; Mercatus sponsors some of the country's top scholars in law and economics.

Pacific Research Institute - The mission of the Pacific Research Institute is to champion freedom, opportunity, and personal responsibility for all individuals by advancing free-market policy solutions.

RAND Institute for Civil Justice - An affiliated think tank of the RAND Corporation, the Institute for Civil Justice tries to make the civil justice system more efficient and more equitable through objective, empirically based research.


Atlantic Legal Foundation - The Atlantic Legal Foundation is a nonprofit, nonpartisan public interest law firm whose mission is to advance the rule of law by advocating limited, effective government, free enterprise, individual liberty and sound science.

The Federalist Society - The Federalist Society is a conservative/libertarian organization of attorneys concerned about the legal system, which produces many useful publications, including Class Action Watch.

Lawyers for Civil Justice - Created by defense trial lawyers and corporate counsel, Lawyers for Civil Justice is a national coalition supporting excellence, fairness, and improvements within the civil justice system.

National Chamber Litigation Center - A public-policy law firm of the U.S. Chamber of Commerce, the National Chamber Litigation Center gets involved, through amicus briefs and third-party litigation, in cases that affect business, including suits that deal with legal reform issues.

Southeastern Legal Foundation - An Atlanta-based public interest law firm, the Southeastern Legal Foundation advocates limited government, individual economic freedom, and the free enterprise system in the courts of law and public opinion.

Washington Legal Foundation - WLF brings original lawsuits, files amicus briefs, intervenes in court cases, and petitions agencies for rulings, as well as publishing timely legal studies written by expert authors.


American Medical Association - The AMA supports reforms to the medical liability system; their website contains much valuable information in addition to their policy positions.

The Doctors Company - America's first national, physician-owned medical malpractice carrier, The Doctors Company supports medical liability reforms.

Health Care Liability Alliance - The Health Care Liability Alliance is a national advocacy coalition that supports effective federal health care liability reform. - This grassroots campaign designed and supported by Citizens Against Lawsuit Abuse groups and other civil justice reform groups across the country attempts "to help raise awareness of the healthcare litigation epidemic affecting all Americans."


Jury Verdict Research - Jury Verdict Research maintains the only nationwide database of more than 213,000 plaintiff and defense verdicts and settlements resulting from personal injury claims.

Stanford Law School Securities Class Action Clearinghouse - The Securities Class Action Clearinghouse provides detailed information relating to the prosecution, defense, and settlement of federal class action securities fraud litigation. The Clearinghouse maintains an Index of Filings of 1990 issuers that have been named in federal class action securities fraud lawsuits since passage of the Private Securities Litigation Reform Act of 1995. The Clearinghouse also contains copies of more than 6000 complaints, briefs, filings, and other litigation-related materials filed in these cases.

Tort reform and federalism - PointOfLaw Forum

The last few days have seen some fascinating discussion worth reading about the relationship between tort reform and federalism: William Jacobson, Stephen Bainbridge (citing a 2004 Volokh analysis), Ilya Somin @ Volokh. See also Roll Call ($).

As Ilya pointed out in 2007, "Most people - even most constitutional lawyers - think of federalism as a system of limitations on central government power. But in many situations, it actually entails limits on the power of state governments as well." Federalism is really about the division between federal and state powers. Given the expansion of the federal role in the last seventy-five years, that usually means state's rights. But it's not just that.

Recall that the main failing of the Articles of Confederation was that it failed to promote interstate commerce: states would seek to benefit themselves at the expense of trade among the whole. The Constitution, by establishing a stronger federal government at the center of the union that would regulate and thus promote interstate commerce, created a structure to prevent states from interfering with interstate commerce. As Michael Greve has written, throughout the nineteenth century, the Supreme Court regularly intervened to protect this structure in a way unthinkable today, reversing state courts and legislatures dozens of times when they acted lawlessly to interfere with interstate commerce just on general legal principles.

The structural problem of states acting to expropriate the gains of interstate commerce for themselves continues today. And the Supreme Court has abdicated its structural role, most notably in Erie, where it disdained the idea of federal common law. Previously, federal diversity jurisdiction gave plaintiffs and defendants a predictable choice of law: a plaintiff could sue a defendant in the defendant's home state court (and thus have the defendant's home state law applied), or a plaintiff could sue a defendant elsewhere, have the case removed to federal court, where a default federal common law would apply. Thus, states had little incentive to try to structure their law to interfere with interstate commerce: it would simply chase business out of the state.

Erie wrecked that dynamic. Now, state courts and state governments had every incentive to arrange their legal affairs to benefit in-state plaintiffs at the expense of out-of-state defendants; federal diversity jurisdiction provided no protection because the federal court would just apply the pro-plaintiff state law.

This is why Congress must get involved. When a state passes tort reform for, say, product liability, it is doing so against the impulses of a collective action problem. But it is doing so at the expense of its own citizens, who will bear the costs as plaintiffs, while the benefits are spread amongst the fifty states. Michigan industry isn't protected by Michigan's friendly pro-preemption law: such companies still get sued elsewhere and subjected to bad state law elsewhere, while are still protected by the Michigan law even if they're located out of state. But Michigan plaintiffs do have their cases thrown out of court, and they become a visible force asking the state to repeal the good law promoting interstate commerce.

This collective action problem can only be solved when federal entities step in. Ideally, that would be the Supreme Court enforcing preemption and the dormant commerce clause and the appropriate relationship between federal authority oversight of national economic activity while state and local government oversees local economic activity. But the Court has all but endorsed an upside-down version of federalism, signing off on a broad view of the federal government's power under the commerce clause, while abdicating a role in most situations where state law is interfering with federal interstate commerce, such as presuming a lack of preemption in cases like Wyeth v. Levine. (The Court's incoherent punitive damages jurisprudence, which it locates in "substantive due process" rather than its commerce clause authority, is a source of concern. I am skeptical that there are still five votes on the Court to intervene in such cases.)

With the Supreme Court taking itself out of the picture and, worse, exacerbating the problem, it falls to Congress to step in with tort reform: creating federal standards and jurisdiction for cases affecting the nationwide economy. Congress did that procedurally with consumer class actions with the Class Action Fairness Act in 2005, all but ending the concept of the magnet jurisdiction that happily certified bad nationwide class actions and nationwide class action settlements for the benefit of local lawyers at the expense of consumers and interstate commerce. It did that with securities law with SLUSA. It needs to step in and create federal standards for product liability, as it attempted to do in the 1990's before Clinton vetoed the bill.

But does it need to do that for medical malpractice law? I'm of two minds here. On the one hand, medical expenditures are increasing a federal budget item, and bad malpractice law is effectively forcing federal taxpayers to spend more money. On the other hand, medical malpractice is a local issue. When Pennsylvania or Illinois decides to create a medical malpractice regime that favors lawyers at the expense of doctors and patients, they do so at their own expense, rather than at the expense of the other states in interstate commerce. (Indeed, a Texas benefits when doctors flee Pennsylvania and Illinois for a more sensible legal regime.) I can see an argument for a patient paying their doctor with federal money being limited (or even prohibited) from a medical malpractice suit as a means to encourage doctors to accept federal program payments that might be lower. I don't see much of a federal concern for attempting to change Pennsylvania's or Illinois's medical malpractice laws on a top-down basis, even though doing so would be good for Pennsylvania or Illinois.

In another post, I'll explain where I agree and disagree with Michael Krauss and Robert Levy's 2004 analysis of the question.

Election miscellany - PointOfLaw Forum

  • Most surprising and dismaying news of the night for the reform cause: Justice Cliff Taylor's loss in Michigan, described by Carter below. No contemporary state jurist I can think of has accomplished more toward causes I admire, or will be missed more. I hadn't blogged much on this, assuming that Taylor was in no danger; his qualifications so outshone those of his Democratic challenger that even the Detroit Free Press, which was extremely hostile toward his judicial philosophy, had endorsed him. It's a sad day. Democrats ran a last-minute ad campaign accusing Taylor of sleeping on the bench, which he told the Detroit News "wasn't true, but it was a very compelling piece of political theater". You think those good-government groups that get upset about negative judicial campaigning are going to hop on this?
  • Mississippi Supreme Court justice Oliver Diaz, who twice won acquittal in the Paul Minor scandal, lost his seat as did two others on his court. Jake Adams at Mississippi Business Law Blog has much more as does YallPolitics. Democrats (and trial lawyer surrogates Texas Watch and Texans for Public Justice) failed to unseat any of the Republicans on the Texas Supreme Court despite a notably nasty campaign. Democrats captured two vacant high court seats in West Virginia.
  • Rep. Tom McClintock, notable California conservative in the House, is ahead by 451 votes (via) and Arizona's reform-oriented Rep. John Shadegg kept his seat.
  • Controversial San Diego City Attorney Mike Aguirre, a former plaintiff's class action attorney, lost his reelection bid [AmLaw Daily]
  • Democrats are expected to take control of the New York Senate, Delaware House and Ohio House, completing their control of those legislatures. In Washington state, incumbent Democratic governor Christine Gregoire, a favorite of plaintiff's-bar donors since her role in the 1998 state-tobacco settlement, won her rematch with Dino Rossi.
  • Legal reformers will be in a defensive crouch in Washington, D.C. as well as many other places for a while, notes MI's Jim Copland.

From Detroit News:

Chief Justice Clifford Taylor of the Michigan Supreme Court was defeated Tuesday by Democratic challenger Diane Hathaway, becoming what is believed to be the first sitting chief justice in Michigan history to lose at the polls.

"It looks like she's won," Taylor told The Detroit News in a telephone interview at about 11:30 p.m. Tuesday. "It looks pretty conclusive."

Hathaway, a Wayne County Circuit judge, was leading Taylor based on exit polls conducted by Tim Kiska and Associates for The Detroit News and Channel 7 Action News.

Hathaway's win signals a major shake-up, reducing a 5-2 Republican majority to 4-3 on the state's highest court, where one of the Republican-nominated justices, Elizabeth Weaver, has been a frequent dissenter from majority opinions.

Hathaway's victory occurs during a Democratic blowout in Michigan, with Obama winning 56 percent of the vote and defeats for incumbent Republican Congressmen Joe Knollenberg, and it appears, Mark Wahlberg. The left-leaning "judicial reform" groups like the Soros-backed Justice at Stake will declare Taylor's defeat as a major achievement for good government and repudiation of business-spending on judicial campaigns.

Anyway, discouraging for rule-of-law judges. (And for disclosure purposes, my boss at NAM is former Michigan Gov. John Engler, who originally appointed Taylor.)

Reform Michigan Government Now! a partisan (financed) affair - PointOfLaw Forum

The deadline for filing campaign financial disclosure reports just passed in Michigan, and the reports confirm the suspected: Despite claims to the contrary, the Reform Michigan Government Now! initiative campaign was almost a purely partisan Democratic affair. As The Detroit Free Press reports, the Michigan Democratic Party spent nearly $1.5 million to support the group, trying to put a proposed constitutional amendment on the ballot to restructure the three branches of government. In the process, eight Republican judges from the Court of Appeals and the Supreme Court would have lost their seats.

Business groups certainly contributed to the opposition, but then, they never pretended to be disinterested parties. (AP story.)

As an inadvertently posted a campaign document revealed, the proposal was an attempt to gain control of state government in time for the next legislative redistricting following the 2010 Census. The Court of Appeals and then the state Supreme Court kept the measure off the ballot because it represented a major revision of the constitution, requiring a constitutional convention.

Earlier Point of Law posts here. The Reform Michigan Government Now!'s financial disclosure is available from the Secretary of State's office here.

Michigan Supreme Court nixes court depacking scheme - PointOfLaw Forum

The Michigan Supreme Court today rejected the appeal by the labor-packed, partisan Reform Michigan Government Now, refusing to put on the ballot the proposed state constitutional amendment to revamp all three branches of government. Detroit Free Press story:

The high-court majority -- Chief Justice Clifford Taylor and Justices Michael Cavanagh, Maura Corrigan, Stephen Markman, Elizabeth Weaver and Robert Young Jr. -- said the Reform Michigan Government Now proposal to enact three dozen constitutional changes, including pay cuts for elected officials, reductions in the size of the Legislature and appellate judiciary, and changes in redistricting rules, was too broad to be addressed by the amendment process and could not be adequately explained on the ballot in 100 words as required.

Justice Marilyn Kelly dissented, suggesting the court was leaving open to question the standards for future proposed amendments.

The AP story is here, and the Detroit News is here, with lots more detail. The initiated measure was the brainchild of some Democrats and organized labor, attempting to seize control of government in time for post-Census redistricting. (In reducing the size of the Supreme Court and appellate court, Republican appointees would have been booted.) They kept their backing silent or disguised until the Mackinac Center found a Powerpoint presentation that laid out the whole strategy.

Earlier posts here.

Michigan Supreme Court hears case today on ballot measure - PointOfLaw Forum

The Michigan Supreme Court this morning will be hearing the appeal from Reform Michigan Government Now!, the labor-backed partisan group that has sought to put a constitutional amendment on the November ballot that would revamp all three branches of state government. (AP story.) The Court of Appeals threw the measure out because the 19,000-word proposal amounted to a wholesale revision of the state Constitution, which requires a constitutional convention.

Proponents -- who sought to hide their labor connections -- want to control government in time for the next post-census redistricting. Among the ballot measure's effects is the removal of Republican-appointed judges from the Supreme and appellate courts.

The Supreme Court's order approving immediate appeal is here.

Earlier posts:

On and off the ballot in Michigan
Michigan court depacking scheme off the ballot, for now
More on the Michigan scheme
The story behind "Reform Michigan Government Now!"

UPDATE: The Detroit News covered the arguments.

On and off the ballot in Michigan - PointOfLaw Forum

Some news coverage and commentary on the state Court of Appeals' ruling that will keep a radical, partisan scheme to reorganize Michigan's government off the ballot. The court ruled that the proposed constitutional amendment amounts to a "general revision" of the state's Constitution, which requires a constitutional convention. We can expect Reform Michigan Government Now to appeal, with minimal prospects of success; the labor-backed group was trying to reorganize state government so its allies in the Democratic Party could control the next round of redistricting.

Michigan court depacking scheme off the ballot, for now - PointOfLaw Forum

Jonathan Adler reports at National Review Online:

Michigan "Reform" Off of Ballot -- For Now   [Jonathan Adler]
A Michigan appellate court has ruled that a "reform" initiative designed to shift control of the entire state government, including the judiciary, should not be on the November ballot.  Coverage here and here.  I wrote about the initiative for NRO here

This is the scheme backed by organized labor that, among many other changes, would reduce the number of Supreme Court and appellate court judges, kicking off Republican appointees in the process. The goal was to gain control of all branches of government in time for the next round of redistricting after the 2010 census.

Earlier posts...

UPDATE (10:48 a.m.): The Court of Appeals ruling is available here as a .pdf file.

UPDATE (1:25 p.m.): The court's opinion is unsparing. From the conclusion:

The RMGN initiative petition is overarching, of a reach and expanse never before seen of any constitutional initiative in Michigan's long history. It proposes fundamentally to design the very framework of the Michigan Constitution of 1963, which emerged after an historic convention and subsequent voter approval. The issue is not whether the motivation for the proposed changes is altruistic or parochial. And the issue is not whether any one or several or all of the proposals in the RMGN initiative petition are warranted or make sound public policy. The issue is that our present Constitution contains specific language requiring that any proposal of the magnitude and enormity of the RMGN initiative petition must be submitted to a constitutional convention, and then to the citizens for approval. We may not blithely ignore or conveniently overlook Const 1963, art 12, § 3, requiring a constitutional convention for any "general revision." The Michigan Constitution has transcended, and will continue to transcend, the lifetime of any single constituency, and it demands no less than a rigorous application of its prescribed methods for modification.

More on the Michigan scheme - PointOfLaw Forum

Having spent a lot of time around state legislators over the years, just can't get enough of the news out of Michigan today. (See James Copland's post here.) Reform Michigan Government Now's proposed constitutional amendment is revealed to be a blatant scheme by organized labor and some Democratic politicians to take control of the three branches of government in time for the 2012 redistricting.

This suspicion was confirmed when some (former-by-now) employee of the UAW posted the PowerPoint presentation online. Labor often overreaches, but boy, oh, boy. And what do you call rigging a court's political makeup by reducing, not increasing the number of justices -- court unpacking?

More ...

Jim and Walter have done an excellent job of covering the waterfront (Jim even quoted my criticism of the "Missouri Plan"!), so let me restrict myself to some additional thoughts they haven't addressed:

The story behind "Reform Michigan Government Now!" - PointOfLaw Forum

Last week, Carter Wood noted the massive (19,000 word) ballot proposition slated to be before Michigan voters that would radically restructure the Michigan constitution -- including stripping away the two senior-most (conservative) supreme court justices, in an FDR-like reverse-court-packing maneuver. (The Wall Street Journal's John Fund wrote on the measure here; I've had an op-ed pending for a couple of weeks at the Detroit News, addressing the ballot measure as well as the broader litigation themes laid out in the recently released Trial Lawyers, Inc. Update on Michigan.)

This afternoon, Dan Pero at the American Justice Partnership reveals the shocking story behind the ballot proposition:

It turns out that all the suspicions about Reform Michigan Government Now's stealth plan to "reverse pack" the courts to benefit the state Democrat Party have now been shown to be right on target.

The smoking gun is a PowerPoint injudiciously posted on one of the UAW's regional member websites and discovered by the Mackinac Center for Public Policy, which has now posted the revelatory document on its website. The UAW PowerPoint makes no bones about the purpose of the measure, boldly titling it: "Government Reform Proposal: Changing the rules of politics in Michigan to help Democrats." The emphasis is their own. . . .

The UAW's PowerPoint lays out "the problem," which is that "Democrats in Michigan have not controlled the entire State Legislature in 25 years," and the Democrats "Must control Governor, Senate, House and Supreme Court" next time redistricting is to occur.

"The Problem," as slides 7 and 8 spell out, is that there is no way that Democrats can achieve this result fairly through the democratic electoral process. As the slides say, it is "a very long shot proposition." Nor, as the UAW concedes, will redistricting reform by itself be approved by the voters.

The only hope then is to "change the rules," and do it by stealth . . . .

The Detroit Free Press reports here.

Judicial elections: a dissenting view - PointOfLaw Forum

Update: Readers and bloggers have had many reactions, which I've summarized in a follow-up here.

* * *

As readers of this space may have noticed, some of our friends in the business community have lately been taking up as one of their big causes the direct voter election of state court judges. They argue in a populist vein that the common people ought to exert control over the judiciary and that methods such as gubernatorial appointment or "Missouri Plan" merit-screening panels are too open to influence behind the scenes from bar insiders, politicians, and trial lawyers. They also appear to believe that litigation outcomes will be fairer and more predictable from a business person's point of view when judges hold their offices by election than when they are appointed. The Wall Street Journal has published a series of editorials and other articles assailing the Missouri plan and talking up direct election.

I must say that I find it really odd that business groups have gone off on this kick. Unlike them, I am not at all convinced that electioneering and noisy public campaigns make a good way of selecting judges. In fact, I think there's plenty of evidence that those practices contribute to some of the most serious problems of the state courts, and specifically to some of the worst problems facing business in those courts. In light of all that, crusading against appointive and for elective methods of judge-picking would appear -- at best -- a badly misplaced outlet for reform energy.

A Michigan leap of faith - PointOfLaw Forum

Reform Michigan Government Now, a political group of uncertain provenance, has submitted its petition signatures (more than 487,000, they claim) to qualify a proposed constitutional amendment for the November election. The measure sweeps through all the branches of government in its 19,000 words, cutting the pay of elected official, shrinking the Legislature and eliminating seats on the state Supreme Court and Court of Appeals, in the process kicking off Republican appointees.

Here's the text.

The petition gathering went on in relative obscurity, and organizers have kept silent about their funding, saying their backers don't have to be revealed until August. The spokeswoman for the group is Dianne Byrum, a former Democratic House leader, and other leading Democrats have praised the measures; scuttlebutt is that organized labor is the primary mover.

Republicans have certainly geared up against the measure, with state GOP Chairman Saul Anuzis laying out the arguments against in this op-ed in the Detroit Free Press. As for the courts, he says, "This monstrosity proposes a wholesale special interest takeover of our state's courts. It purges two Supreme Court justices, with those justices chosen by one set of criteria. It wipes out seven Court of Appeals judges by a different set of criteria. It jiggers the pensions of more than 250 judges, potentially creating a real emergency in our courts if most or all of them decide to quit. "

Which raises another sticky issue. Backers of the measure claim no sitting judge can review the legality of the ballot language because of inherent conflict of interest; they'd be ruling on their own pay. (Kalamazoo Gazette story.)

Gov. Granholm, a Democrat, says she likes some parts, not so sure about others, and maybe a state Constitutional Convention is the way to go. (Detroit Free Press.)

So, much confusion, no doubt litigation, and let the accusations fly. The measure promises months of theorizing, commentary and fun for political watchers, but it's hard to see any good government coming out of it.

A group calling itself Reform Michigan Government Now has proposed an initiated measure to rewrite the state Constitution, including provisions for all three branches of government. The Associated Press reports the measure would reduce the size of the Michigan Supreme Court from seven to five seats. The state Court of Appeals would drop from 28 judges to 21, while 10 judges would be added to local circuit courts. Salaries would be cut 15 percent.

The financial backing of the group is unclear. The Republican Party has expressed sharp disagreement with the "stealth petition campaign"; the Democratic Party is receptive. The Grand Rapids Press reports: "Notably, the measure uses seniority to determine that Justices Stephen Markman and Robert Young, half of a conservative majority on the high court constructed by GOP Gov. John Engler, would lose their seats in a downsizing of the court. Cuts in the Court of Appeals target Republican jurists as well." The Michigan Association for Justice, the trial lawyers group, says it's not involved.

Details of the measure here. Supporters must submit 380,000 valid petition signatures by July 7 to qualify for the ballot.

Trial Lawyers, Inc. Update - PointOfLaw Forum

Make sure to check out the new installment in the Center for Legal Policy's ongoing coverage of America's lawsuit industry. We have just released a new TLI update: The Move to Reverse Michigan's Model Reforms.

Michigan has the good fortune to be the only state in the union with an FDA defense law: once a drug has recieved FDA approval, its maker cannot be sued for damages, except in case of fraud on the part of drugmaker or government. Now, the plaintiffs' bar has launched an assault on this unique protection, putting the state in economic danger and threatening to lower the quality of its citizens health. Read and download the whole report here.

Trial Lawyers Try to Open Up Michigan for Vioxx Suits - PointOfLaw Forum

An editorial in the Detroit Metro Times (billed as "Detroit's weekly alternative") advertises a proposed change in Michigan's law prohibiting suits against drug manufacturers over drugs that have been approved by the FDA.

Michigan has one of the strictest laws in the country, prohibiting most product liability suits against a drug manufacturers if the drug at issue was approved by the FDA. See MCL 600.2946(5).

The spate of recent Vioxx suits, however, left the Michigan trial lawyers panting for a piece of the action.

Michigan House Bill 4773 would rescind Michigan's blanket immunity for drug manufacturers, replacing that immunity with a "rebuttable presumption" that a drug approved by the FDA was safe.

The editorial, however, injects an unintentional bit of irony when it describes the bill as a necessary step to allow Michigan residents to sue over drugs like Vioxx, "which was found to have caused heart damage."

It is hyperbole like this that prompted Michigan to adopt its blanket immunity law in the first place.

I have no idea whether Vioxx is a safe drug or not. I do know, however, that it was Merck's own testing that uncovered the potential problem with the drug and that Merck voluntarily withdrew the drug from the market, even whent he FDA had cleared it to continue sales.

The scientific question of whether Vioxx "causes" any adverse effects seems to continue to be in dispute.

As recently as May 5, 2005, Merck's Vice President of Global Strategic Regulatory Development, Dennis Erb, testified before the House Committee on Government Reform that, "while Vioxx was on the market, the combined analysis of our controlled clinical trials demonstrated no increased risk of cardiovascular thrombotic events for pateitnts taking Vioxx compared to patients taking pacebo or NSAIDs other than naproxen."