January 2011

I applaud the decision of the Republicans newly in control of the United States House of Representatives to read the entire United States Constitution on the first day of the new Congress. Everyone in government should keep the Constitution firmly in mind.

The commitment of  constitutional conservatives’  to our country’s founding principles is widely known. That of course includes the Bill of Rights that was ratified along with the original Constitution, as well as other amendments adopted since that time.

Probably everyone is familiar with some of the key concepts in the Bill of rights, including:

  • Free exercise of religion (First Amendment)
  • No establishment of religion  (First Amendment)
  • Freedom of speech (First Amendment)
  • Freedom of press (First Amendment)
  • Right to peaceably assemble and petition government for redress of grievances (First Amendment)
  • Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
  • Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
  • Right against self-incrimination in criminal case (Fifth Amendment)
  • Due process of law (Fifth Amendment)
  • No double jeopardy (Fifth Amendment)
  • Right to face accuser, impartial jury and assistance of counsel in criminal cases (Sixth Amendment)
  • No cruel or unusual punishment, excessive bail or excessive fines (Eighth Amendment)

Equally sacrosanct in our Constitution since 1789 is the Seventh Amendment, which provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, "In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Other founders were equally adamant about the critical importance of access to civil justice. Thomas Jefferson called civil jury trials, "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

But today, that Seventh Amendment right may well be the most ignored and endangered of those enumerated in the Bill of Rights. After 25 years of propaganda  from corporations that seek to avoid accountability for harms caused to ordinary people has threatened to shred the constitutional right to jury trial through a variety of procedural and substantive roadblocks, all at the expense of ordinary American citizens’ Seventh Amendment rights.

I trust that true Constitutional conservatives in Congress will be as enthusiastic about upholding the Seventh Amendment right to jury trial in civil cases as they are about other Constitutional rights.

This month all Georgia lawyers have a new resource for online legal research as a benefit of membership in the State Bar of Georgia. The Member Benefits Committee compared  Fastcase to the online research site that was previously provided to Georgia Bar members, and found Fastcase better in several significant aspects. Here are links to the Fastcase website, blog and user manual.

This helps to level the playing field for solo and small firm lawyers with tight budgets.

Like most Atlantans, I was stuck at home for three days this week, catching up on home repair projects and watching weather reports and scenes of truck wrecks on TV.  Fortunately, there was no power failure. I recall once in my childhood at Mentone, Alabama, we had an ice storm that closed schools for two weeks and knocked out our electricity for a month.

This being 2011, I was able to access the office computer remotely, though the connection is so clunky I’m ready to investigate cloud computing.

Wednesday I tried six routes to get to the office, but all were blocked by vehicles whose drivers could not negotiate icy hills.  Even in an all wheel drive vehicle in low gear, I couldn’t get by them.

I don’t criticize the state and city governments for not having fleets of snow removal units. This isn’t New York.  We get a winter storm like this about once per decade. It makes no sense for cash-strapped governments to invest many millions in specialized snow removal equipment that may be used 10 days out of 10 years.

But there are some points worth noting:

  • Fortunately, collisions with serious injuries were not reported, probably because most people stayed off the roads.
  • Most of the worst problems on the roads related to tractor trailers trying to get through despite the weather. While I imagine a lot of those drivers were pushed by dispatchers hundreds of miles away to press on despite the weather, the companies and the drivers share responsibility to pull off and wait for conditions to clear.

    The Federal Motor Carrier Safety Regulations §392.14 provides:

    Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. . . .

  • I hope that debriefing from this event includes identification of trouble spots and revision of contingency plans for future winter storms.  A lot of changes in local roads and traffic patterns have occurred since the last winter storm of this magnitude. Local governments that prepositioned snow removal units, and started clearing main roads while the snow was still falling, seemed to fare best. That might include:

 – Close metro expressways to through truck traffic when the Governor declares a winter weather state of emergency. Distant dispatchers would not be able to harrass drivers to press on despite unsafe conditions. To facilitate this, designate adequate parking areas outside the perimeter where truckers could wait out the storm. There are shopping center parking lots off exits outside the perimeter that are little used during winter storms that could be utilized in such an emergency.

 – Pre-position snow removal units at critical areas, such as tricky slopes and intersections, when a winter storm is forecast.

 – Begin scraping, salt and sand on main roads while snow and ice are still falling.