how about the availability of your care? as most americans know, coverage does not equal good care. according to the government's own experts, it could get a lot harder for many americans to find a doctor or a hospital to go to. now, for seniors, the reason is because the law cuts 500 billion dollars from medicare not to save medicare, but to start a whole new washington program. and seniors are not the only americans targeted by the president's new law. small-business owners now have to file burdensome tax forms for basic business expenses such as phone and internet service, shipping costs, office supplies. this absurd provision only increases the costs of owning and operating a small business. each and every day, more people pay the price of obamacare's mountain of mandates. as i travel across the country, i continue to hear from americans who want washington to take its hands off of their health care. interestingly, the only way to get out of this law, is to have friends in high places -- like in the president's own administration.

while the administration is forcing most americans to accept the new law, over one and a half million americans now get a free pass. these people have been given special washington waivers. many of these waivers have gone to labor unions who supported the law in the first place, but now don't want to live under it. well, if you don't have a lawyer or a lobbyist connected to this administration, you're out of luck. this isn't fair and it's not the american way. as a doctor, i have taken care of families for over a quarter of a century. i know that this law is bad for patients, it's bad for providers -- the nurses and the doctors who care for those patients -- and it's bad for taxpayers. as a doctor, i'm disturbed that the law will require more irs agents to investigate you. to make sure you actually buy insurance -- but it fails to deal in any meaningful way with the shortage of nurses and doctors to actually take care of you. your health care decisions should be decided in your doctor's office -- not a

washington office. nothing should come between you and your doctor. not a government bureaucrat. not an insurance company bureaucrat. nothing. republicans will fight to repeal this job-destroying law and replace it with patient centered reforms. reforms like making it legal for americans to buy health insurance from companies in other states. ending junk lawsuits that drive up the cost of everyone's care. and restoring americans' freedom over their own health care decisions. thanks to the vote in the house of representatives, we are now one step closer to victory in the fight for a health care policy that puts americans first -- not washington. our job won't be done until we repeal and replace this bad law. thanks for listening. >> congress returns to session this week to work on a number of items. the house cavils in at 2:00 p.m. eastern on monday for

legislative business. the plan to begin talks begin debate on measures that will in all non discretionary federal spending until fiscal year 2008 levels. a final vote is expected on tuesday. see the house live on c-span. the senate gavels in at 10:00 a.m. eastern and will have time for general speeches before changing senate rules on a filibuster. the proposal aims to limit when and how the filibuster can be used. live coverage of the senate can be seen on c-span2. >> this new law is a fiscal house of cards and it is a health-care house of cards. >> as anybody, any family in america, any single mother, any spouse, any child, any grandparent met a more bureaucratic system than the american health insurance system?

>> watch this week's health care debate from the house for any time online with c-span's congressional chronicles. track daily time lines and read daily transcripts of the house daily session. that is that c-span.org /congress. >> in a moment, the supreme court hears oral arguments on state secrets. after that, a discussion on how it u.s. courts might deal with future cases on gun rights. and then, the house judiciary committee holds a hearing on the relationship between medical malpractice liability and health care costs. >> sunday, on "washington journal," aamer madhani and russell berman.

then, michael koplow about unrest in indonesia. after that, president-elect of the american council association, m.j. raleigh. plus, your e-mail and phone calls. "washington journal," live sunday at 7:00 a.m. eastern on c-span. >> this sunday, on c-span3, domestic terrorism from the american historical association conference. learn of the century-old traditions of preparing for horse-drawn funeral cases and how former slaves escaped and started a separate experience american history tv on c-span3. all weekend, every weekend.

you can press the c-span alert button and have our schedules e- mail to you. >> earlier this week, the supreme court heard oral argument on limits of state secrets, a legal doctrine that the government uses to stop lawsuits that could expose information vital to national security. the case involves a dispute between the federal government and boeing and general dynamics. boeing and general dynamics contend that the government violated their corporations by and -- constitutional rights by using the state secrets privilege by stopping them from arguing their case. this is one hour. >> we will hear argument first consolidated case, 09-1302, the boeing company v. united states. mr. phillips. >> thank you, mr. chief justice, and may it please the court.

the proposition that petitioners are here challenging is the one adopted or embraced by the federal circuit that says that the united states government can declare that certain of its government contracting partners have operated in default and under those circumstances can reach into the government contractor's pocket, withdraw at the time $1.35 billion of monies that were spent by the united states, but for services that were rendered, without question, pursuant to the contract, pursuant to the instructions of the united states government, and that when the contractor seeks to defend against the claim that it has engaged in some kind of default conduct, that the government can assert the state-secrets privilege and in so doing deprive the contractor of the ability effectively to respond to the government's conclusion. theirp ability to respond to the government's conclusion. it's seems to me the statement in this court's decision, the united states vs. reynolds, which is the government is certainly free to assert the

state secrets privilege, but when it does so has to assume certain responsibilities that come from that, at least in the circumstances were the united states is party. >> when the contractors failed to deliver the first aircraft in time specified by the contract, the decision was that its cost would not out run the contract price. so it sought to reformulate the contract. at that time, correct me if i am wrong, but i think at that time the contractor said nothing at all about the superior knowledge and the government's obligation to share information that it had not shared. >> there was nothing specific to that, justice ginsburg, and the first time they identified the

superior knowledge problem arose when the government took the extraordinary step of issuing a cure notice. up until that time they are trying to negotiate a final resolution of the project, as you would hope that a contractor would, to bring this to a happy resolution. >> but you would expect them to say that if that was the impediment going forward with the contract with least mention it. >> i think you have to put it in context. during this time, there were consistent efforts and requests being made to get access to both the b-2 and a-117 stealth technologies. eventually, the information was forthcoming, but it was too little, too late to effectively allow the contractor to proceed as planned. i agree, in a perfect world,

maybe they would have identified this, but in this situation the parties are trying to come to some kind of resolution that allows both sides to be satisfied by the final disposition. the need it --'t why wasn't the need to share that part of the contract? i thought the contractor had all of it, or enough to fit. i have not found anywhere in the contract that it requires the u.s. to share with you. does that have anything to do with what the process would require? >> no, i think -- >> i will pose a hypothetical. but assume it requires a sharing of state secrets, and the government then invokes its privilege. is that a different case than this one in terms of due process?

would not the former situation, where it it has been made a condition of the contract, require different treatment than this situation, where the government should say, if you want to raise the defense that is not part of the contract, then you do what every other that began with a privilege does, whose privileges have been invoked against. you proceed with whatever evidence you have. that is usually what happens with other privileges. >> right, and we would have been content, but the ultimate decision was it was impossible to ultimately be in position to resolve it. i want to answer the more fundamental question, your honor, the basic point is the background principle of law, this is superior knowledge, is the understanding of the knowledge of the parties as they enter into it.

the federal circuit has acknowledged the superior knowledge defense. that is an understood basis on which the parties enter into an agreement. that is the first answer. second, you are asking us to put into a contract something about information we do not know anything about. we have some sense about the b-2 and a-117, but we don't know anything about the other programs identified. >> where is the obligation of the government to tell you, build it this way using the technology we are to have? i thought the claim was you were promised this information and use structure of the contract based on that promise. >> we have a series of distinct clients. our first claim was that we would nef near -- we would have never entered the contract if it was based on superior knowledge that, for instance, the wheat specifics we were being asked to pruett -- the weight specifics

we were being asked to supply were impossible to comply with based with what the government already knew. if we had just been given a warning, we would not be in the situation where we are here. >> there is a factual dispute about that. there is a claim that they told you your weight estimates were not correct. >> that may be a factual dispute, and i would be happy to litigate that issue if we get to that point where we are in fact allowed to litigate any aspect of our particular defense, but the bottom line is, again, to state the propositionl the as it is, they are saying the government can assert a claim for $1.35 billion against us and tell us we cannot defend against that claim even know the reason why we were not able to comply with the contract is because of the fact the government did not provide us information at the outset. >> first of all, what that

suggests is that in this case it is not unfair to hold your client in this case. you just read it two circuit court opinions and you think this is the defense. in other words, it is not unfair. but let me give you another question, and that is, if we accept the supreme rule of law, which was said in reynolds, and apply it to government contracting, where sophisticated contractors are perfectly capable of negotiating their own contracts, we are not just throwing a monkey wrench into the gears of government contracting, we are throwing the whole monkey. that is my second question, one, this is not the case that calls for it, and two, the threat to

government contracting by changing from reynolds to here is overwhelming. now, i would like your views on both of those. >> it seems to me this is the precise situation where reynolds is saying if he cannot bring forward a legitimate defense -- part of the problem is we don't know precisely what information. is very difficult to say, how strong is our defense under the circumstances. what we know is the clear federal claims judge looked at this and said we had made an impressive showing without regard to any of the confidential privileged information of a prime facia defense and the circumstances. art position is we had a good defense. -- our position is we had a good defense. we're not throwing this into force the government to assert the state secrets. that is a contrived approach to litigation and not something i would imagine any circumstance we would do that.

second, i don't see how this throws a monkey wrench into this process whatsoever, much less the monkey, because the basic understanding is the government is not entitled to force its contractor down a ruinous course. if the government has information available to it, it has to make that information available to the contract, either at the outset, which would have been the best of circumstances, or as the golan. >> -- as they go along. >> the petitioners were removing party. >> that is not a self define the concept. the petitioners are the plaintiffs. >> they were the plaintiffs, and review scheme that was announced them was known beforehand. what we need to look at that? >> the review scheme says the 1986 insurance case, before this

contract was entered into, the federal circuit said the mere filing of a complaint immediately vacates the contract and officer's rule. our understanding at the time we entered into this was there was a problem with a contract in officer operating, we could file a claim and make be contracting officers rule off the table. under those circumstances, it seems to me we go to the status quo in that situation, which means there is no contracting officer decision, there is no basis on which the government can make a claim for $1.35 billion. not ahought that was proper payment based on completed work. if government says that money was advanced. you had not complied with what was necessary to get that $135 -- $1.35 billion.

it they say you have not fulfilled what you need to do to get that. >> there had not been a final sign off by the contract in officer of proving it, thereby reducing it to a liquidated claim. but that is a vastly different statement, and indeed we have an argument with respect to half of that that it already had been effectively approved in a mechanism independent. the bottom line is these were services rendered, actually rendered, not some prepayment for services to be rendered in the future. this was work we had done for which we had submitted specific claims and for which the contract in officer had pending -- the contract in officer had pending before him at the time. so what the government says is that it was payment and that they did not ultimately get the

airplane seat that were the -- the airplanes that were the ultimate desire of the contract. that is true because they terminated the contract a year before the airplanes were due to be provided. >> you are seeking to emerge as a total winner, get from this contract what you would have gotten if it had been successfully completed, including any profits -- >> that is not true. all we are asking for are the remedies that are fully available if you were to convert this from a termination for default into a termination for convenience. under those circumstances, the government has a wonderful mechanism that protect it against the kind of lost profit damages that might otherwise be available in a situation we have a more traditional breach of contract. all we're asking for is the actual amount of money that we expand it -- expended, which is

unchallenged, although at some point it might be litigated, but that these were all reasonable, allowable, and allocable cost to this particular contract. >> why should we not view this as if it was a dispute between private contracting parties? if we did that, perhaps one party would be the moving party with respect to some of the claims and the other would be the moving party with respect to the remaining claims. >> i think that is precisely how you ought to look at it. we would be very comfortable with that because it is quite clear to me that except in a hypertechnical way, because of the way the contract disputes that, plays out, the government is unquestionably the moving party, the party seeking affirmative relief. >> i think it is questionable, mr. phillips, for this reason you say it is implied term of this contract that the

government has a duty to share certain information. and you are seeking to out in force that implied term under the contract. it seems to me, as to that alleged duty, you are the moving party. >> well, that is one way to articulate it. at the other way to articulate it which is much more consistent with reality of what is going on is the government is making a claim for $1.35 billion, for which we did not act in a timely fashion. that is the only basis that exists in this is just the time of the actions we took. our answer to that claim is to say, no, we are not at fault for the delays because you did not provide us the information or you could not spare us the burden of having to go down this path. >> but then you say, give us the

payment for the additional money beyond the $1.35 billion that you have already given us. >> right, that just goes to the question, is there some way to evaluate those claims separately? the answer rias, yes, they should be. >> why shouldn't they? it seems to me if indeed the government has come up with a defense that makes it impossible to decide who is in the right here, i think the usual course taken by courts would be to leave the parties where they are. the matter cannot be litigated. that would be you keep the $1.35 billion, but you would not be entitled to sue for the additional amount. if you were that were read, you should have more frequent progress. why not just leave it where you

are, both you and the government? >> well, to be sure, we would be much more comfortable in a world that just articulate, justice scalia. with interest. [laughter] and certainly we think that is the minimum that we should be entitled to, and maybe to some extent you could say we're being a little greedy, but the reality is the standard rule is that if the contract and say you cannot make a determination that the contractor has been guilty of default, then that contract should be in basic contract law and this agreement that he would converted to a termination for convenience. >> you mentioned that you get to keep the $1.35 billion.

but there was also another figure. 1.2 billion you would get on top of that. >> no, but the $1.2 billion was with the additional amounts of money actually expended by the contractors that were reasonable, allocable, and allowable for their claims on this agreement. and it would be the standard operating procedure. if you have a termination for convenience where the government says, look, we decided we don't want these airplanes any more, let's call it off, which they have the right to do, then the question is what are the reasonable costs that are reallocated as a consequence? >> but the government did not do that. you are making that up. they did not terminate for convenience, they claim you are in default. why should we force that down the government's throat when we can no more say they are wrong been you are wrong?

>> it seems to me -- and the question is if you call off the game, what flows from that? it seems to me if you say, let's let the government call that default or you could just as easily say, the decision we would take, the government cannot call it a default, because in order to do that, somebody has to make a judgment that is not an honest assessment of the facts of this case. if you say it is not a default termination, then at there are certain consequences that flow from converting it and it automatically converts at that point to a termination for convenience. in a termination for convenience situation, you reallocate the cost in precisely the court of federal claims has done this. >> but we are assuming we agree with you on the rest. we're not seeing it as a default termination.

we're saying we don't know. we don't know what the state secrets thing is. the government is entitled to make that determination. we don't know who was in the right. why force the government to go to a termination for convenience? >> i would think more appropriately to proceed under those circumstances, it carries a lot of collateral consequences. it exposes you to subsequent problems in the contracting process and creates the possibility of future proceedings that rather than allow a fighting that no one can comfortably conclude is the right fighting to stay in place and have those collateral consequences flow from it, the more appropriate way to proceed would be say, look, i cannot make a determination this case there should be a deterrent -- a termination for default. therefore, under government contract in principles, it automatically convert over to a

termination for convenience and then you go down the road of evaluating those costs. the government has arguments about those costs and we can debate those out, although i would commend the court -- >> it is just a reasoned way to reach the result justice scalea is suggesting. because you are being greedy, you admitted it. the termination for convenience carries its own automatic consequences that appear unfair and light of the fact the litigation of the default termination has been invoked because there is a risk to the united states. so is there a reason to wait to do it? to not impose that and fairness on the government? and if there are is not, explain to me why it is unfair, given

that you are two sophisticated contracting parties, knowing that you entered a contract with the government that you knew they could invoke state secrets, it has, and you bear the risk of that. you know the government could have done this. that is my original question. >> right, and so could the government. the background principle is the united states forces ronald. that case says it if somebody is the moving party is seeking affirmative relief, that is the party that bears the burden. >> can i ask you what of that principle makes any sense in this contract situation? both parties have argued it as though they're trying to determine the moving party. but in this situation, it is very often arbitrary or

fortuitous. if you think about it in a private setting, you have one contractor who fails to perform deficiente some bes product, the other decides not to pay, and the question of who the plaintiff is is often just a matter of who gets to the courthouse first. whether somebody is demanding their money back or simply refusing to pay at all. so white in his contract situation it is a question of who is the plaintiff or the moving party -- so why in this contract in situation is a question of who was the plaintiff or the moving party? >> i think in reynolds, the court used the language moving party precisely for that reason. i think what the court had in mind was seeking affirmative relief. >> speaking of a port.

-- speaking of tort. >> that is a specific context. >> if i have page you already and i find your product sufficient, i will go to court and demand my money back. if i find your project efficient before i pay you, your gone to court and say you have to pay me -- if i find your product position, before a pay you, you go to court and say you have to pay me. >> in one situation i have $1.35 billion in my pocket for services that were unquestionably rendered in which satisfied our portion of the obligation under the contract -- that of both parties have claims. one says you are obligated to pay me. the question of who has the claim and the affirmative defense, it could be structured

either way. >> i don't disagree, but the bottom line is, what did the principles of fundamental fairness tell you to do with this? >> that is exactly my problem, because when i look at reynolds, reynolds does not hold anything in your favor. it holds the opposite way. it says it is unconscionable for the government both to prosecute and not to tell them the secrets, ok? and it says such a rationale has no application in a civil forum where the government is not the moving party. it does not say anything about where the government is the moving party. it consists of the two opinions of the federal circuit. now, what do you want me to read to get over that impression? >> the very fact the court says

and limits its ruling -- >> it did not do that, it said the rationale is unconscionable. i don't even have to go that far. i can go to fundamentally unfair. what should i read to get under my unfortunate impression, which i got from the two opinions, that there was nothing unfair? what do you want me to read to get over that impression? >> you should clearly read it the court of federal claims opinion that gave rise to this in the first place, where the judge said we have made an impressive prime facia showing of a defense, and the federal circuit appeal was we don't care, which will not let you go down that path, period. we're setting where we have made that shelling, the default rule should be the government cannot -- >> that showing was based on the

court's review of already confidential information, correct? >> and the non privileged information. >> so it made it this judgment on a great deal of information, yet cannot conclude that you were right as a matter of law, correct? >> it recognized that it terminated discovery very early, and there are whole programs we know nothing about. we know about the b-2 and a-117, but we do not know about the other programs. >> thank you, mr. phillips. general? you, mr. chief justice. at first, the government does not affirm invoking the power of the court, only that it was mr. phillips client who 20 years ago walked into the federal court

and ask that court to set aside the decision of the contract in officer and to award them over a billion dollars of damages. the government by contract ask them to dismiss the federal lawsuit. second, reynolds makes clear the state secrets privilege will be used to bar a claim at most only when the party that is relying on secret information is trying to use the federal court to alter the legal status quo. >> we have gotten to this point in the dispute. you say they are at fault, they say you are at fault. under the state secrets doctor and, we cannot resolve that question. what we call the whole thing off, nobody is at fault? that means it is terminated not for fault but for convenience. >> several reasons. one is that is the affirmative use of the federal courts to alter the legal status quo. i think the principle of reynolds is out -- but only because you alter the legal status quo.

you altered it by holding them in default. >> i disagree, mr. chief justice. i think the contract itself specifies the contract officer will decide there is default termination. once they do that, then date though the on liquidated payment. >> would that not be an affirmative step? >> it is an affirmative step under the terms of the contract, but not the federal courts. >> he works for you, and he is the one changing the status quo. >> that is undoubtedly the case, and that is the terms of the contract which they agreed. our central proposition is in a world where the federal court does not know who is right and who is wrong on a particular claim, it should stay its hand entirely and get out of the business altogether.

that follows the credit principle of doing no harm -- that follows the socratic principal of doing no harm. >> the party that seeks relief from the court is the party that bears the burden involved in the invitation of the state secrets privilege. if that test is applicable in the contract? >> i think there are special arguments available in this case because it is a contract with sophisticated parties and will decide who bears the burden of coming into court and so on. i think this is a simple principle, and a world where the court does not know who is right or wrong, that is the answer to the question but that justice sotomayor asked about the court a federal planeclaims.

they said, we cannot know one way or another. >> i am interrupting justice alito because you need to his question quickly. it is your position that if we determine your the moving party, you lose? >> no -- >> he asked whether we apply reynolds. he did not say which part of reynolds. are you conceding that if we apply reynolds and we find you what the moving party that you lose? >> absolutely not. i don't think it says if the government is the moving party is an automatic loss. i think there is no reason whatsoever for the court -- >> i don't know that moving party means who comes into court first.

in the context of a contract dispute, i would say the moving party is the party who is trying to use the principles of law to change the contract. and that is the government here. the government is blowing the whistle. the government is saying you are in default, and under the laws of default, we could walk away, and indeed we can claim the money we have already paid. that seems to me the moving party in the context of the contract. >> i think it is important to add, using legal principles in a federal court. that is what reynolds is talking about. >> reynolds was talking about that because that was the situation in reynolds. but i am saying the logic of the matter, the logic of the matter when applied to a contract situation such as this, what to be the party that is blowing the whistle, who is trying to use

the law, the one who was asserting that the law requires this result. then we say, well, we cannot tell if it requires this result are not. >> i don't think, justice, that is what reynolds is getting at or what the court tossed subsequent decisions are about and the role of federal courts. i think with the decision say together is if you do not know one way or another, you should want the clock back to the status quo ante before the suit was filed. at that, there was a right for the government to have $1.35 billion. i understand maybe you should cut it even, you are saying, and they keep the money and we don't have to pay the $1.2 billion. i suggest there is no principled way to do that, without think is what mr. phillips -- >> it was the hon doubt it right

of the lawsuit only if the contract in officer was correct there had been the fault. if he was wrong about that, it was not the right of the government. >> justice scalia, but be read the contract. if the contract is terminated under the default clause, the contractor shall on demand repaid to the government the amount of progress payments. and then what happened as a result of that demand letter that we sent right after the termination for default was they came to was, at an hand, and said, please don't take this money from us right now, our bank is one complaint and so on. so we entered into deferment agreement. >> could to give the site? >> joint appendix, page 342. it seems an odd motion of due process to say somehow we agree to their deferment create some entitlement for them to keep the $1.35 billion.

>> i have this question about due process. the component of the due process analysis, it seems to me, but what is reasonable and necessary in the case, what is unconscionable. it that seems to me just an extrapolation of what reynolds said, and i don't know why we don't just have that as a federal common law contract. doon't know why we need to the due process analysis. one is assuming that we apply reynolds. >> if you were to look to that background, all principal, you look to reynolds and todden which makes clear at the time they signed their contract, they were on notice that highly classified information that is the subject of litigation is something that generally cannot be litigated in the federal court. then if you wanted to think about due process and the overlay of unconscionable liddy

or whatever with respect to federal contracts, you ordinarily assume the contract itself of highly sophisticated parties would work that out ahead of time. if they were concerned about the situation unfolding, they could have written into the contract they should get certain information and that if the government invoked the state secrets. like it would automatically terminate -- if the government and of the state secrets privilege it would automatically terminate that and convert into eight termination of convenience. >> then you would restate what would happen and the reynolds with this case. i think it is almost a wash. >> i think the contract is undoubtedly clear that in order to challenge the decision of the contract officer about the default termination, they have to come to federal court and invoke affirmatively, seek affirmative judicial relief from the federal court to change the world. >> am i right that this contract

did specify certain information that the government agreed to give the petitioner? >> that is correct. that is in the joint appendix. >> it says the reason they cannot specify this information is because they did not know what it was. they didn't know what was secret information or what to ask for. >> is a very odd thing to bid on a multibillion-dollar contract on the assumption they will get some technology they have not even specified. they are bidding for their research and development. they brought in lockheed, which had built low observer ability planes precisely for the reason -- low observe ability planes precisely for the reason they had the technology. i don't think anybody held a gun to their back. >> they claim that you knew it

was impossible to do with a contract with you to do, to have the weight of airplane that he contacted them to come across with. they say you knew that because of other contracts you had but did not tell them about it. >> two things, first -- >> we will never know if that is true because you came in and blew the whistle and said, state secrets. >> that was litigated before the court of federal claims along with 18 other claims and defense to the up $1.640261632. -- and defense to about $1.35 billion. much of that has taken place in a highly classified environment. >>. you sang that was not impossible to do? >> i am saying that we warned them of such and those are the

citation in the government's brief. >> at the weight contracted for. >> we had warned them it was not, and we later relaxed at wheat specification. i am not sure that is prevalent one way or another. a central position is if you are not sure, if you don't know who is right or wrong, then the federal court should not be completed in the process of siding and picking winners and losers in that circumstance. >> are you ever the moving party in the court of claims? >> sure, i imagine we could be on a counterclaim. >> but then that means somebody else is the moving party. >> that is correct. that if somebody wants to get money from the federal government, they have to go out to the court of claims. >> that is correct. >> this is a convenient role for you. bennett is a convenient ruled that they agreed to when they

signed contract. they knew the deal going in, which was if it wanted to challenge the decision of the contracting officer, they would have to come in. they could have structured it differently. the could have said if there was termination for default, it could have been changed. >> you have the burden of proof on the issue of the fall. >> we have the burden of proof on the fault, but not superior knowledge. if you follow their rule, they're asking the court to proceed against the facts and say they are entitled to not just $1.35 billion, about 1.2 billion on top, as if they had proved their superior knowledge claim. >> i think justice scalia was asking, why can't we just said all bets off, everybody go home

with what they have. but mr. phillips said it is either default termination or termination for convenience, nothing in between. the u agree those are the two choices, nothing else? >> i agree that is the with the contract is written. distinguish between those two, distinguish between liquidated payments, which we are not seeking, and on liquidated payments at which the government has the absolute right at the moment the contract officer decides there has been in default. >> i don't care how the contract has been written. if we're going to say there has been a broken play, which cannot apply the contract because we cannot decide who is in the right or wrong. it is totally irrelevant but the contract says. you just leave the parties were they are. >> i am saying the the parties were they are, under the terms of the contract. >> no.

>> we don't think the federal courts should be in the business of micromanaging and contractual situation with parties that can protect themselves very easily. >> we can do it as a matter of the lot of contracts -- the law of contracts. reynolds' talks about the moving party, and i am not sure that phrase had or has really definable content in our law. it seems to me this is a question of burden of persuasion. if the contractor has to proceed, in the case certain shelling and the government has to go back and forth. if at some point the burden of persuasion invokes the privilege, then we have to ask if it is fundamentally fair as a matter of federal law of contract. >> even if you follow that reasoning, and i don't think you should, they would still lose because they still bear the

burden of proof of persuasion on superior knowledge. i don't think that would be the rule that is appropriate, justice kennedy, because i think underlying reynolds is the central proposition that the court should not be involved, should not be picking winners and losers either way wednesday. knowledge is involved. -- either way when secret knowledge is involved. >> so you were not able to make that showing because of state secrets. what would happen then? >> unable to make a showing in federal court? >> that is right, that the secrets you wanted to protect or actually the key to your proving a year was the fault -- proving there was the fault. >> in that case, i think the case would be dismissed because

they would be coming in and seeking affirmative judicial relief to break the contract officer's decision and get whatever damages they want. >> let me understand, because that sounds like you win both ways. you were saying that if state secrets. the u from making your affirmative case -- if the state secrets. did you from making affirmative case -- >> the general proposition is if the federal courts cannot know one way or another who is right or wrong, it should not grant affirmative relief to a party. >> to a moving party, and you are never the moving party. >> again, justice scalia, that is the contract they signed. that could have cited for a contract with different results. >> did the contract contained the term "moving party"? >> it did not say that, but it

did say who had come to court to challenge the decision of the contract officer and puts that burden on them. >> that is what i don't understand. yes, that the fault provision -- the default provision is decided by the contract officer, but you cannot collect on that judgment of the have filed a complaint. you cannot do anything until you get the court to affirm your default. you are asking for a legal declaration of being right, that they defaulted. you are the ones seeking that. >> this is a very important question, and that is the impression left by their brief, and it is wrong. the filing of their claim and the court of federal claims, that is wrong under the statute, 605b, which says that a clause

can be put into the contract to continue and require performance even if there is an appeal to the court of federal claims, and that provision exists in this very contract. >> i am sorry, you are going to fast, and i don't think i remember this in your reply brief. >> it is in the reply brief, and our claim is that provision requires -- right now, we have an absolute and comment to the $1.35 billion. that is what the contract says, that is what the deferment agreement says that we have entered into. so we're not asking, justice sotomayor, for any judicial decision at all. we know what the court doesn't state secrets cases, to say out entirely, to deny the case on the merits. if you do what mr. phillips

said it or if you do with justice scalia suggested, the compromise option, that is using the power of the federal court, granting him relief on a claim that he has not proven. that is something i see zero precedent for. >> we're leaving you where you are, we're saying get out of here. we don't know what the answer risk. the view where you war. b>> we have no problem with a go away rule. if he returned to the status quo, we would have the $1.35 billion. that is what the contract says, that is their own filing. before the court of federal claims called the up $1.35 billion money presently due and owing. >> that assumes that the termination for default was valid, and we don't know what was that, and we don't want to have to require whether it was valid.

to say go away means everybody keeps the money he has at. >> justice scalia, that is using the power of the court to set aside the contract in officer's decision, which i think is forbidden by reynolds, it would be and not rule because it is happenstance. if we had insisted on the $1.35 billion that was owed to us, we cannot even be having this conversation. the only reason we are having it is because we acceded to the run request to not take the $1.35 billion right away. >> what with the contractual terms look like that would avoid this problem? -- what with the contractual terms look like that would avoid this problem? >> you would say the government invokes the state secret privilege and it becomes a termination for convenience. >> with the client ever agree to that?

>> the government? i think that underscores the problem with their argument. they are saying, read the contract this way to convert this all into termination for convenience, when the state secrets privilege is invoked. i agree, that would be a very unusual contract for the government to get into. >> so how do they write the contract? your answer cannot be, the only way they write it is a way you would never accept. >> i think there are other ways. there is the possibility they would demand extra money in exchange for greater risk. there may be some alternative dispute resolution mechanism. >> would there be a problem with that? >> it would depend, you might have it in the military, the equivalent might be panels. i am not sure what the precise

contractual arrangements would be. i think the need for this court to be involved is a lot lower than in the criminal context of reynolds, because the government is a repeat player with the contractors. they're not in the business of trying to willy-nilly advanced the state secrets privilege to undermine and take money away. i think the 2003 federal circuit decision, there have only been a couple of instances in which i am aware of in which the government has invoked the state secrets privilege in any contract in action, and nothing and that superior knowledge. since 2009, the government has invoked the state secrets privilege a whopping two times. >> it is not a big practical problem. would you go back to justice kennedy's question for a minute? i don't quite see, if you would discuss it a little bit, how you

do this as a matter of constitutional law. because the due process clause is tied to fundamental on fairness, and i think the answer has to be in this circumstance secret or not, it depends. it depends on many things. would you write this as constitutional law? would it not be written as federal common law contract? should it not be written as an exposition of the superior knowledge doctrine, which seems totally open to it? or should it not be written as a matter of discovery law, which is what the district judge ended up thinking, gee, i got no? -- i don't know? how would you do that? >> i think that is an ill fitting concept in this contractual dispute for a couple of reasons, not just in that sophisticated parties agreed ahead of time to other things,

but also the whole notion of due process and contracts it is off because the government has waived its sovereign immunity. they did not have any free andnding right to commene in claimed fundamental unfairness and contracts. so the question becomes, is there some extra benefit they should give the can to reynolds about criminal defendants using state secrets? the answer to that i think it is, no, because the parties work that out themselves. my answer to you is to use the contract as the contractual interpretation as the basic rule for decision. the contract specified, done under the shadow of reynolds and under the shadow of todden, that they would have to be the moving party and challenge the

decision of the contract officer. >> you could say the parties couldn't put this down, anticipatory breach. that could have been negotiated. that is not the way that contract law works. >> what this thousands of pages of contract, this could have been worked out in advance, and i think it was. they knew going in they bore the burden of walking into court, paying attorneys and everything else, to challenge the decision of the contract officer, and they also knew at that moment that the government had an undoubted right to the un liquidated progress. the contract they signed it distinguished between liquidity progress payments as to which the government has no right andun-liquidate met payment automatically gave that to the government. the argument they are advancing is, let's collapse those, but keep the $1.35 billion because

the government has not given it to us yet. >> why is it not liquidated? >> because the contract specified two payments streams. one is the work they had reviewed and understood and the government said this is good, we will pay for it, and other works with her claims to have made, but they have not gotten paid by the government. i don't think there is any sort of evidence, certainly nothing the court below found, that said because they have eight right to be not-liquidate it. >> what is the other at 2.5 billion? >> there seeking on top of keeping the $1.35 billion. that is the extra costs incurred under the contract, above and beyond the $4.8 billion in the initial contract. >> general, the you have the

citation to that footnote you refer to? i could find it later, but -- >> it is page 32, allen also referred the court to appendix -- and i would also refer the court to appendix 157, which incorporates the provision. it says it mandates performance compliance with the contract, even when the contract officer decision is under appeal. it is not the case whatsoever that there filing of this claim somehow vacated the contract officer's decision. the only way that would happen is if this federal court reverses the federal circuit. >> so your view is the complete did not state their obligation to pay you? that required them to pay you? >> that is right, at that

moment, they knew that. in fact they sent a bank letter saying please don't do that. then we entered into a deferment agreement. but we have an absolute right to that money right now, regardless. we don't need an affirmative decision forum this court to get that money. we're asking them to follow the high credit principle th --e hippocratic principle of doing no wrong or harm. >> if you are right, out with this follow with other contracts? >> that is right, it provides an offset. we don't actually have to seek the $1.35 billion dollars, we would just get that.

>> you get the extra money without having to go to court. because they have to go to court to challenge the offset. >> and again, that is the contract which they signed. >> thank you. >> thank you, general. mr. phillips, you have three minutes. >> justice kennedy, i think this can be properly decided on federal common law principles and i would ask the court to apply this contract principles. join appendix, page 209. the general focuses on what happens when the contract officer take some action. what he leaves out is, "the contractor shall have the right of appeal under the disputes calls from any determination by the contract officer." he talks about what you do with the article 3 context, it specifically allows us to go to the contract appeals.

i guarantee the government will make the exact same argument if we had taken that route. it seems to me the case ought not be decided on the basis of this technical assessment. it ought to be decided on the basis of where the rights are and what are the fund but the change and who is making the shift in one direction or another. if you do that, and justice ginsburg you ask, am i asking for nothing? no, there is no question you can't come up with a principal basis. you could come up with the principal basis to stay our hand, we will not uphold the contract officer's decision, and we will not say there is default, we will not go the extra mile and say it is a termination for convenience. >> you are sitting there is a middle way. >> no question. all i was saying in response to justice scalea's question -- >> on what principle? >> if you do not have a

principal for default, we cannot decide who is right and who was wrong, and therefore we cannot enforce the contract officer's decision and we don't do anything more. we leave the status quo ante, which means before they declared a default under the circumstances. >> it could go away under the principle of jurisprudence, right? [laughter] >> mr. phillips, i understood your paper that it was making only a constitutional claim. >> i don't read that. we certainly had a due process argument embedded in there, but there are a number of references to federal common law principles as nine constitutional basis on which to rule in our favor. i think the court ought to be informed in making its determination about the contract in arrangement about whether this is unfair and unconscionable. you could do that as a matter of

federal common law principles. at the end of the day, your honors, we ask for the court to reverse.

hello and welcome and thank you for being here today. i want to extend our special welcome to our c-span audience and a thank you to c-span for covering our event today. that's always a welcomed edition about i'm dean router vice president and director of practice groups at the federal society. our program today on the future of the right to keep and bear arms is co-sponsored by the federalist society and the cato institute after having been conceived in the first instance by the federal of society's civil rights practice group. i want to thank our four panelists in advance for their remarks and their time today. we're expecting to hear some pretty sharply, contrasting views from the four of you. i also want to thank our co-sponsor cato and dr. roger pylon of cato. i thank them for their help. in addition to help organizing the program, dr. pylon's going to be our moderator today. he's the founder and director of

cato's center for constitutional studies and he's a frequent speaker at federalist lawyers and student chapter events around the country discussing all manner of constitutional issues and including of course the second amendment. again, roger, thank you for your role and in making this program possible today. >> well, thank you very much, dean, for introducing me. i want to also join dean in welcoming all of you to the event this afternoon and to the cato institute and to thank dean and the federalist society for co-sponsoring this forum. let me welcome those of you who are watching the forum through cato simulcast or will later be watching it through the good offices of c-span. when dean called me a couple of weeks -- a couple of months ago actually about doing this for him on the future of the right to keep and bear arms, we had no

way of knowing, of course, that the issue would soon become salient once again as it has in the aftermath of the tragic shootings in arizona, less than two weeks ago. gun control is a perennial issue in american politics, of course. but at times like this, the debate becomes especially intense. our concern today, however, will be less on the politics of the issue much less on the prospects of enacting new federal legislation which seems unlikely as the new 112th congress focuses, as it's already doing, on such basic questions as whether they have the constitutional authority to do so much that congress is doing today. rather we're going to focus on the legal issues and events that underpin the current debate. i say current debate, because, of course, much has changed in the gun control debate over the past couple of years. in 2008, in district on columbia

v. heller the supreme court found for the first time in our history that the second amendment protected an individual right to have a gun in the home for self-defense and not simply as a member of a militia. now let me pay tribute to cato's own bob levy, chairman the the kato institute, who was instrumental in developing the strategy for that litigation and supporting the case all the way through to the supreme court. then just last year. the court found that the right was good against state and local restrictions as well. but in both cases, the court left open just what kinds of limits on the right to keep in bear arms might be permitted and that's the subject of litigation that's going on across the country today. and the main question that's before us today as well. but it does bring us back to politics, if mainly at the state and local level because the

righted issue like all issues not absolute whatever that may mean but subject to reasonable legislation designed to protect members of the public from exceptional risk, on one hand, and the right of individual the right to bear hands including self-defense on the other hand. that's a mixed question, one might say, of law and fact. so to discuss that question we brought together an exceptional panel of experts who i'll introduce just before each of them speaks. as the federalist society in the cato institute usually do, we have both sides represented today. at least insofar as one can speak of this issue in that way. each speaker will address the issue for six to ten minutes. we'll, then, ask them to respond to each other's arguments after which we'll open the discussion up to questions from the audience and then retire upstairs in cato's winter garden for lunch. let's begin, then, with alan r

gura at the law firm of gura and possessky. the united states states district judge for the eastern district of north carolina. after that, as a deputy attorney general for the state of california, he defended the state and its employees from all manner of lawsuits in state and federal courts at trial and on appeal. thereafter, he entered the private practice of law at the washington, d.c. offices of sidly in austin. in february of 2000, he left the firm to serve for a year as counsel to the u.s. senate judiciary committee. alan's admitted to the bars of the district on columbia, virginia, and california, and has admitted to practice before the u.s. supreme court and numerous other federal courts. in 2009, he was named one of washington's top 40 lawyers under 40. and a champion of justice by legal times. he's a graduate of georgetown university law center and cornell university where he

earned his b.a. in government with distinction in all subjects. please welcome alan gura. >> thank you, roger, and i would like to thank the federalist society and cato for you coming here to hear us speak about these very important issues. it's been less than six months since the supreme court issued its decision in mcdonald versus city of chicago and effectively gave us a green light to go ahead and see to what extent the second amendment applies to state and local government regulations that touch upon the issue of the possession and carrying and use of firearms. although it's been really such a short time since we've had this ticket to litigate as it were, many people are already trying to write the second amendment's obituary, decrying the fact that because no severe restrictions have yet been overturned, and because heller and mcdonald, itself, did not actually involve

cases, involve anything beyond the possession of a handgun. in the house, that means that the second amendment must be limited to its facts, and that we must all expect to have a rather limited form of this right going into the future. i think that this is not really the -- the appropriate approach to take. imagine if in january of 1955, brown v. board of education was declared to be a failure because there was still an awful lot of repression going on. obviously, the federal courts move much slower than some of the rest of the world does today in the age of the internet and instant analysis. and we simply are at a point in time now where we have not yet had very many decisions, very many meaningful decisions, certainly not at the -- at the court of appeals level and in the federal system coming out of carefully crafted, strategic civil litigation. we have had a great deal of decisions in the lower courts. coming out of the sort of cases

that would one expect if the immediate aftermath of a decision like heller or mcdonald, namely, criminal cases, which are always on a faster track, that involve so much more far-fetched claims by people who are desperate to raise constitutional defenses and in whose counsel acquired zealously to act on their behalf. seek out any grounds that they may have to avoid criminal liability. the brady center used to have this page on their website where they had a long list of cases that explained why the second amendment secured only a collective right. well, most of those cases were of course criminal cases of that ilk and it took some time for well-crafted civil litigation to address that topic. so to those people who would look at the wide array of -- of quickie, quick litigation in the lower court to say ah-ha.

i would say, stay tuned. we have many, many cases that are currently winding their way up to the appellate courts. and we will, then, see exactly how far and why the second amendment actually does apply. when we get to is of those answers, i will caution advocates of gun rights that we're not going to in every case p it's not realistic to expect that the court will get every single second amendment case correctly. we don't have that situation prevailing currently. in any other area of constitutional law there's nobody out there that believes that every first amendment case decided by the supreme court was correctly decided, or every single fourth amendment case was correctly decided by the supreme court. so the second amendment may not suddenly become a font of perfection. nonetheless, i believe that heller and mcdonald and some the development were in the lower case indicate that we'll see a robust and vigorous right that has a lot of actual application to people. the first thing to consider in looking at the framework of

second amendment analysis is that not every case should be or will be decided as a matter of means' end scrutiny, sort of a standard of review. the strategy of the other side is to look at every single second amendment case is one that necessarily calls upon the courts to engage in any balancing of interests, and then to apply what they call reasonable regulation which is another code essentially for rational basis review to that, and then of course because the courts will always defer to the intinations of the legislature. that's not really the framework nat supreme court has left us in heller in mcdonald. heller did not announce literally a standard of review, because it was not required by the case. it's a wonderful object lesson in the facts that you don't always need a standard of review. what did heller involved? heller involved a handgun ban, which is a question about, what

classes of arms are protected or are not protected by the second amendment. and devises to attest to that and the so-called functional firearms ban. well that law clearly contradicted a core aspect the second amendment and so there was no need to review any sort of balancing test. it simply was in contradiction to a core aspect of the right. so those are two approaches that we're going to see in future cases. cases that challenge regulations, that bans certain weapons, or that mandate that arms have certain features in them are going to be adjudicated not upon a balancing a standard of review test but upon heller's common use test for what's a protected arm. some cases will fall by the wayside, if you simply ban an exercise of the right to arms or some aspect of it. for example, i'm currently litigating a case in which

the -- the city of chicago has banned people from using guns at a firing range. they've banned gun training. they've banned going to the range and practicing. where we believe that a core aspect of the second amendment, if you have the right to a gun, one of the obvious things that you would do with that gun is take it to the range and practice. and so that doesn't really require a standard of review necessarily to resolve. that case is on appeal. we look ford that. some jurisdictions ban entirely the carrying of arms in public. now that activity can be regulated but they cannot be banned entirely. again, that's -- that's a matter that doesn't -- that isn't going to require a balancing test. and to the extent that some of these jurisdictions impose licensing requirements that are applied in arbitrary capricious action. again that's not a balancing interest. that simply calls into play the supreme court's longstanding teachings about prior strength

doctrines and since we've had a number of federal courts already adopt essentially first amendment frameworks for the second mamt. we've seen the third and the fourth circuit do that explicitly. that prior restraint doctrine into the world of the second amendment. so again, standards of review are not going to solve everything. to the extent that some cases will have to be adjudicated on the basis of a means and standard review, the standard of review is not rational basis. however made that clear. we've already the fourth circuit find that it's either intermediate or upon strict scrutiny. and i expect that other courts will take mcdonald's instructions seriously that this is a fundamental right that fundamental rights are not afforded fundamental basis. they're taken seriously. and the government will have to carry some burden of showing that the laws serve narrowly a substantial or compelling governmental interest. so the future is bright. we have not yet had too many

decisions. we're looking forward to the outcomes in a number of these cases. and we'll see how it goes. i would like to briefly mention, if i have time, roger, in my initial comments. two challenges we do face that are quite serious in this field. the first challenge, we do sadly have a number of people out there who have taken upon themselves to litigate these cases in a pro se basis. we have a lot of armchair constitutionalists, people who are bringing cases, perhaps that are not the best conceived or well considered. and they're meeting with the sort of results that one would expect. this is an area of law upon which many people are deeply impassioned. and when people read on the internet some theory of the second amendment, and they feel excited about this and go plunk down their $300 at the federal courthouse and file a lawsuit,

sometimes the results are not going to be great for securing this right in a meaningful way. the second problem we have i think is something that will be touched upon. when i go into a courthouse, and i'm representing someone who's claiming the right to carry a gun, oftentimes the judge may not be necessarily familiar with gun owners or with firearms. the clerks and the court may not be familiar with this world. and for us to try to show that this is a normal right, that normal people exercise and can be done in a safe and responsible manner, that mission is not helped with -- it's not helped by a lot of the more extreme rhetoric that's out there sometimes that we see some people espouse on the internet and other places. we live in a world where the camera will gravitate towards the most insane and extreme rhetoric that someone might

speak. and when some fringe people become the face of gun ownership, and the use of firearms, that is sort of a challenge for the rest of us to try to overcome. so that is something that, of course, weighs on our minds. of course, in america, you have the right to be anti-social and do crazy things. no one would challenge that. but it is one of the head winds that we face as we do try to establish and secure a right which normal people safely enjoy. thanks. [ applause ] >> thank you, alan. now for something completely different. dennis henigan will speak next. he is vice president of the brady center to prevent gun violence. and founder of its legal action project. he's the author of "lethal logic, exploding the myths that paralyze american gun policy." for over 20 years, he's been a

leading advocate for stronger gun laws, appearing dozens of times on national television and radio, including "60 minutes," the "today" show, "nightline," and so forth. he's also had written and spoken extensively on liability and constitutional issues relating to gun laws, and gun violence. including testifying before several congressional committees. he's a regular contributor to the "huffington post." under his direction, the brady center lawyers have recovered millions of dollars in damages for gun violence victims, as well as winning precedence-setting decisions on the liability of gun sellers. in 2004, he was named one of the top ten lawyers of the year, by lawyers weekly magazine. his work as a public interest lawyer has been in the new yorker. his law degree was from '77 from the virginia school of law. prior to joining the brady center in 1989, he was a partner

in the law firm of foley and lardner. please welcome dennis henigan. [ applause ] >> thank you, roger. and thank you all for being here. i noticed a generational difference between alan and myself. when he came up he brought a little laptop computer with him. i bring a notebook. what can i say. certainly the tragic shooting in tucson has made this program even more timely. but i think it also demands that we put our constitutional discussion in a broader context. because our conflict today really can't be confined to constitutional theory. the scope of the second amendment has profound real world consequences. it has life-and-death cons fences. and as i see it, much of the debate about the second amendment is really a debate about two visions of america.

one vision is literally guns in every corner of american society. more guns in more american homes, more guns on the streets, more guns in restaurants, in coffee houses, in front of grocery stores, in educational institutions. maybe even in the cato institute. and i think a lot of the litigation we see out here is an effort to achieve through the courts that vision of america. there is, however, a competing vision, and that is the vision which allows responsible citizens to have guns in the home for self-defense, but allows government to impose reasonable restrictions to try to prevent those guns from being accessed by dangerous individuals. and the real world consequences of those competing visions were made starkly clear by the tragedy in tucson. the state of arizona has largely realized the vision of guns everywhere. it some years ago eliminated all

law enforcement discretion over who gets a concealed to carry permit. it recently became the third state in the country to require no concealed carry permit. arizona's gun laws were so weak, that if the shooter's community college officials had reported to the tucson police his dangerous behavior, the police under arizona law would have had no power to prevent him from carrying a concealed weapon. and the sidewalk in front of that safeway was not a gun-free zone. indeed, the shooter himself was a law-abiding citizen. he had passed a background check. he was a legal carrier of a concealed weapon, up until the time he pulled the trigger. on the other hand, if the alternative vision of reasonable restrictions had been in place, there would have at least been a law on the books limiting the capacity of the ammunition

magazine that the shooter used. and he would not have been able to fire 32 rounds in 15 seconds without having to pause to reload. only when he had to pause to reload was he subdued. there is no question that the absence of such a law led to greater death and serious injury in that shooting. now, i believe that the supreme court rulings in heller and mcdonald are far more consistent with the reasonable restriction vision of america than with the guns everywhere vision. first of all, the right announced in heller is quite narrow in scope. it is, according to justice scalia, the right of law-abiding, responsible citizens to have arms in defense of hearth and home. making it irresponsible for citizens to get guns should not

run afoul of the second amendment and not have a gun outside the home. and as a matter of fact, federal and state courts so far, in seven states and the district of columbia, have rejected the proposition that heller implies a right to have a gun outside the home. and i think this is an implicit recognition that clearly the government's interest in regulating guns is even greater when they are carried outside the home. there are substantial risks associated with guns in the home, when the gun owner takes those risks out into the community governments' interests are even stronger. in addition to narrowly defining the right, scalia's opinion went out of its way to make clear that the right is not absolute, and includes extraordinary language, actually discussing gun laws not even at issue in the heller case. justice scalia wrote that nothing in our opinion should be

taken to cast doubt on several broad categories of gun laws, including laws placing conditions on the sale of guns, laws completely banning concealed weapons, not just licensing them, banning them, laws regulating the storage of guns in the home to prevent accidents, and several other categories were mentioned and he said those categories were not exclusive. now, in the wake of tucson, we have actually seen support for one reasonable and constitutional restriction come from a very unlikely source. bob levy, the chair of the cato institute, and kind of the godfather of the heller case, has said that he doesn't think a restriction on high-capacity magazines would violate the second amendment. so when i can agree with bob levy on anything having to do with guns, maybe it's a new day. we estimate that there have been so far about 300 second

amendment challenges filed since heller. and so far heller and mcdonald have proved to be much more pop guns than assault weapons as weapons against gun laws. a wide variety of laws have been upheld. bans on possession of guns by felons, bans on possession by domestic violence misdemeanors, by persons under restraining orders, bans on machine guns, bans on semiautomatic assault weapons, restrictions on guns on college campuses, the list goes on and on. and in fact, probably the most far-reaching decision is the decision by a federal judge in the district of columbia to uphold the laws in this community that were enacted after heller, laws that allow law-abiding citizens to have guns in the home but are still the most restrictive laws in the country upheld in their entirety by a federal judge. so generally speaking, courts have taken those assurances and

justice scalia's opinion about the legality of gun laws very, very seriously. and the vast majority of courts have been highly defer rengs to legislative decision-making on guns. they have either found that the scalia created categories are basically safe harbors, so that if a law falls within the category, or is analogous to it is upheld, or they have held that those -- that section of the heller opinion is inconsistent with the idea of strict scrutiny and have used a much more deferential scrutiny test. i think alan's going to talk about standard of review more. the one comment i would make about the standard of review issue is this. it is that there is a tendency to kind of jump to a first amendment analogy here. and i think it should be resisted. i think the first amendment has some things to teach us about

the second amendment. but i don't think we should be locked into the first amendment categories, simply because, frankly, the second amendment is a very different kind of right. the right to have a gun in the home for self-defense increases the risk of physical injury in a way that no other provision of our bill of rights does. a gun in the home increases the risk of homicide in the home by three-fold. the risk of suicide in the home by five-fold. in addition, it's been shown that communities that have a higher incidence of -- the highest incidence of gun ownership have far higher homicide rates in communities than states with the lowest rates of gun ownership. so there is a connection here. the more people who exercise this right, the greater the hazard to the individual, the family and the community. and that simply has to be recognized. you simply cannot say that about the first amendment.

and what i think that means is, that the second amendment should be regarded as, to some extent, generous. it is like no other right. it is, in my view, the most dangerous right. and i think that it demands its own unique constitutional jurisprudence, that is highly deferential to the very, very difficult judges, that the elected officials have to make as they seek to form you late policies that will prevent future tucsons and that will reduce the tragic toll of gun violence in this country that now takes 80 of our fellow citizens' lives every day. thank you very much. [ applause ] >> thank you, dennis. and i want to thank our first two speakers for coming in exactly on time. i say that in light of the fact that we now turn to academics. >> i have 50 minutes, don't i?

>> we're going to hear next from professor nelson lund, who is the patrick henry professor of constitutional law in the second amendment. at george mason university law school. he's written widely in the field of constitutional law, including articles on constitutional interpretation, separation of powers, the second amendment, the commerce clause, the speech or debate clause, equal protection clause, uniformity clause. in addition, he's published articles in the fields of employment discrimination and civil rights, the legal regulation of medical ethics, the application of economic analysis, to legal institutions and legal ethics. professor lund left the faculty of the university of chicago to attend its law school, where he served as executive director of -- executive editor of the university of chicago law review. and charter chairman -- chapter chairman of the federalist society on public policy. after law school he held positions in the united states department of justice, in the

office of solicitor general, office of legal counsel. he also served as a law clerk to the honorable patrick higenbotham, the court of appeals for the fifth circuit and sandra day o'connor. following his clerkship with justice o'connor, he served in the white house as associate counsel to the president from 1989 to 1992. please welcome professor nelson lund. [ applause ] >> thank you very much, roger. it's an honor to be here. my talk is going to be a little academic. i'll try not to go over my time limit by too long, though. after the heller decision was announced, there was a lot of celebrating by gun rights advocates, and by proponents of the interpre tiff theory of realism. that was understandable. heller was the first significant victory for gun rights in the history of the supreme court. and the majority opinion is

filled to the brim with the rhetoric of originalism and detail to historical senses. i just wish it were all true. but i'm afraid this reminds me of a little bit of the celebrations of the court's commerce clause decisions in lopez and morrison. heller was an important test case for the interpretive theory. there was no supreme court precedence, certainly none that could be considered dispositive. this was also a good test case for originalism, because the send amendment poses some genuine puzzles. its text uniquely explains a command. what it says is a well regulated militia, necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. what is the importance of a well regulated militia have to do with the right of the people to keep and bear arms. one usually thinks of

constitutional rights as obstacles to regulation. not spurs to regulations. and it's not immediately evident, at least the typical 21st century readers, how this right of the people would contribute to the establishment or preservation of a well-regulated militia. a different kind of puzzle arises from changes in the world since 1791. the militia organizations ex tolled by the founding generation have withered away and advances in the technology of weaponry have produced arms that are far more dangerous than anything that was available in the founding era. and how do these developments affect the applicability of the send amendment to modern society. heller was a good test case for originalism for yet another reason. the opinion was assigned to the court's most prominent exponent of the jurisprudence, justice scalia. thanks to a large body of scholarly literature written over the past 30 years, scalia

successfully made a powerful case for two important propositions. first, the right to keep and bear arms is an individual private right, not a right of the state's organized militias. second, the purpose of the right is to enable individuals to exercise their inherent or natural right of self-defense, including the right to defend themselves against criminal violence. but that's not enough to resolve the initial about the relationship between the pref a tory language of the second amendment and its operative clause. scalia tries to do this, as any originalist must, but his analysis is full of fallacies and absurdities. he provides no tenable explanation of the meaning of the reference of a well regulated militia in the constitutional text or provides any evidence of any kind about the proper scope of the right of people to keep and bear arms. the most difficult text question which scalia never even

addresses is how codifying the right to arms could have been expected to preserve, promote or prevent the elimination of a well regulated militia. i believe there's a perfectly good answer to that question. but no answer of any kind will be found in scalia's opinion. and that is a very, very serious shortcoming, in a judicial opinion that purports to rely as heavily as scalia's does on tex actual analysis and originalist interpretive principles. scalia's failure to identify any textual of the second amendment right has spectacular effects when he addresses the heller case itself. namely, whether the d.c. handgun ban was unconstitutional. the court concluded that it was unconstitution al, but the only reason scalia offers are that handguns are popular weapons for self-defense among americans today. and that he thinks there are

good reasons handguns are popular. that is not a historical or originalist argument. if it's any kind of argument at all, it's probably a disguise in incomplete form of the qua si legislative living constitution interest balancing approach that scalia disdainfully dismisses elsewhere in his opinion. it's very striking that scalia abandons any realism when he addresses the question actually presented in the case. what's even more striking is that he also includes a series of astounding and unnecessary comments endorsing various forms of gun control that were not at issue in the case. scalia does not provide a shred of legitimate historical evidence to support any of these conclusions, to the extent that he gives any reasons at all, they're based on blatant mischaracterizations of the historical evidence on plainly inapplicable decisions of state courts and in one case on interpreting a prior supreme

court decision to mean the opposite of what it says. in a narrow sense, the constitutionalist is vindicated in heller because the court reached an easily defensible originalist result. but the court's reasoning is a critical point so defective and transparently nonoriginalist in some respects, that i think heller should be seen as an embarrassment for every justice who joins the majority opinion. now, heller applies the federal laws like the one in the district of columbia. in mcdonald the court's decision held the same principles applied to state and local governments. mcdonald presented the court with a more difficult question than it faced in heller. it could follow its due process in corporation precedence, which have absolutely no basis in the text or history of the constitution, or it could go back to first principles and examine its very dubious decisions under the privileges or immunities clause.

but that's a slightly larger framework. the 14th amendment, which if anything applies to the second amendment to the state that has to be the 14th amendment. it includes two different clauses. and applying other provisions of the bill of rights, to the state that the court has relied on the due process clause, which there's no basis anywhere in the text or history of the 14th amendment and has ignored the privileges or immunities clause in that context. at the oral argument it was pretty clear where the justices were headed. the challengers of the chicago law was represented by alan gura. and he started out by arguing that chicago's law violates the original meaning of the privileges or immunities clause. and who do you think interrupted him to ridicule him for making this argument. none other than mr. original meeting himself, anthony scalia. here's what he said. why are you asking us to overrule 150, 140 years of prior law when you can reach your result under substantive due

process? i know unless you're bucking for someplace in a law school faculty. the nastiest thing you can say to a lawyer. as if that weren't enough, scalia soon followed up with this mocking comment. well, i mean, what you argue is the darling of the prove esor yat for sure. but it's contrary to 140 years of our jurisprudence. why do you want to undertake that burden instead of just arguing substantive due process, which as much as i think it's wrong, even i have acquiesced in it. so justice scalia's position seems to be something like this. ignoring the original meaning of the constitution is an outrage, except when i've acquiesced in it. and when i've acquiesced in it, it's time for everybody to stop wasting our time in talking about originalism. great. in the end, four justices applied the court's due process precedence and in a perfectly

straightforward and respectable way. oddly, however, the opinion for the four justices also makes a series of arguments designed to show that the court's decision is consistent with the original meaning of the 14th amendment. those arguments are all bogus, and in some cases just shockingly bogus. justice conlis tried to apply the immunities clause and he got exactly zero support from anybody else. but perhaps the worst aspect of the alito opinion is it's entirely gratuitous reaffirmation of heller's irresponsible endorsement of various forms of gun control that were not at issue in either case. so what can we expect in the future. my own guess is that we'll see a great many poorly reasoned, lower court decisions, largely upholding various kinds of gun control regulations. and we'll see an occasional

intelligent effort to apply a sound legal analysis imposed by heller and mcdonald. there will probably be some victories for second amendment rights in the lower courts, and maybe we'll see some eventually in the supreme court as well. what i do not expect, however, are any victories for the originalist approach to constitutional interpretation. at least in the supreme court. if the jurisprudence of the second amendment goes in the direction that i hope it will go, it will have to be because at least five justices recognize the social value of the free citizen's right to keep and bear arms. if they get to liking this right, as much as they like the right of free speech, the second amendment will be in pretty good shape. but i don't think there are an awful lot of encouraging signs in the heller and mcdonald opinions. thank you. [ applause ]

>> thank you, alan. i think. nelson, i mean. we're now going to hear from alan morrison to wrap things up in our first round. alan is the learner family associate dean for public interest and public service law and professorial lecturer in law at the george washington university law school. he received his undergraduate degree from yale college and law degree from harvard law school. he served as a commissioned officer in the u.s. navy, his early legal career includes working as an attorney, and as an assistant u.s. attorney in the southern district of new york. in 2004, alan retired from public citizen to work at stanford law school as a senior lecturer on administrative and public interest law. he's taught at several law schools including harvard, american university, new york

university, tu lane university, and china's fudan university. alan teamed up with ralph nader in 1972 to found and direct the public citizen litigation group, the litigation arm of the consumer advocacy group public citizen. over the span of his career, he has argued 20 cases before the united states supreme court. please welcome alan morrison. [ applause ] >> thank you. a couple of preliminary matters. first, i first came to a program at the cato institute in somewhat less august surroundings than this. as i recall, the institute was in the basement of a small townhouse on 2nd street southeast. and i was there because i, like the people at the cato institute, believed that many of the restrictions then and still today as to the unauthorized practice of law harmed consumers by creating artificial barriers to the delivery of low-cost

services to people who could not afford to have lawyers. i was proud to be there then, and i'm pleased and proud to be here today. the second point that needs to be made is, you wondered why am i here. besides the fact that i was invited. i'm here because, for a brief period of time after i left stanford, i worked at the attorney general's office for the district of columbia, and i was scheduled to argue the heller case. i in fact had been significantly involved in writing the brief in the heller case, and my boss and the mayor and the mayor's counsel had a difference of opinion as to the respective roles of the mayors, counsels and attorney general, and she sensibly resigned and i got fired as a result of it. the day the brief was about to be filed. so i didn't get to argue the case at all. i know who my friends are. they say to me, alan, if you had only argued that case you would have won. and i said, dream on.

there was no chance. justice scalia it made up his mind. all right. now, one thing i did when i was drafting the brief, and this brief was largely the work of others who came before me on the case and who worked with me in drafting the brief. the one word i would not allow, and i've won this battle, to appear anyplace in our brief was the word clear. as in the second amendment history clearly says this, the text clearly says that. i said, it would be a de riggs of all of the trees that had fallen as a result of second amendment scholarship for anybody to think that the answer was clear. and yet, justice scalia thought the answer was clear. but then again so did justice stevens. and they both said it was clear. if there's one thing that's clear about it, is it's not clear. all right. now, there is one argument that we made that on the basic second amendment doesn't apply to the militia, as opposed to does it

apply to individual right to bear arms. and i don't intend to rehearse, or relitigate that issue here today. but there was an argument we made which i don't think we made as fully as i would have wanted to have made it. and that is, people would say, well, it's in the bill of rights. therefore, it must be like all the rest of the parts of the bill of rights. and there is an answer to that. why was it in the bill of rights, and the answer is, because, and i think this is pretty clear, that madison, who was in charge of the bill of rights, said one thing, we are not going to touch the body of the constitution. we are not going to do it because that would reopen all of the compromises that have come before it. and so while i am agreed to allow additions to the constitution, nobody's going to go back and touch it. and that's the reason that the second amendment was not put back into article 1, sections 15

and 16, which do talk about militias. and so there is a good solid explanation for that. as to why it's not treated like the bill of rights. now, am i talking about that just to make an argument here today, that the decision was wrong? no. because i think that fact has continuing validity as we go forward. and as the argument that is made, well, this is like the first amendment. and it's not like the first amendment, because for the historic reason i gave you, and second, to repeat a phrase that my mother told me many times when i was a boy growing up, sticks and stones can break your bones, but names will never hurt you. ala, first amendment is not equal to the second amendment. guns can hurt people. first amendment words may annoy you, antagonize you, but they cannot hurt you in the same way that guns can hurt you. all right. i disagree with justice scalia's determination, but it is certainly not an unreasonable

determination that the second amendment applies to greater -- to something else other than the militia. my biggest objection to his opinion is what followed afterwards in the ten pages or so he dealt with the issue before the court. now, would it such that alan gura said earlier today, that the only decision that was made there was that you had a right to an operative gun in your home. one of the problems with the district of columbia's law, and this really didn't get played out until we got to the supreme court, was that not simply did it forbid you from having a handgun in your home, which would have been one thing, but they had this strange interlock no-load law, and nobody, i mean nobody, in the district, in the police, had ever focused on what it was supposed to mean and how it was supposed to operate in the real world. because the problem was, that that part of the law applied not just to handguns, but it also applied to all forms of

firearms. meaning that you couldn't have a loaded rifle in your home. well, we conceded that rifles were protected, that that was an alternative to handguns. and therefore, it was appropriate means of defense as opposed to handguns which were not in our view an appropriate means of self-defense. it had all the negative things that rifles and shotguns did not have. by the way, this view about rifles and shotguns being adequate was not my idea or that of anybody in the district. we found this idea in a debate in a magazine that i normally do not read called "guns and ammo" in which the fight was about whether a shotgun or a rifle was the better means of defending yourself at home. we thought any evely, it appears, that just because the gun people thought that was the appropriate debate, that by definition, having a handgun was okay, and was certainly within the realm of legislative reasonableness. we were obviously wrong about that. but if the -- so if narrowly

defined, that is, if a court wanted to reach the nar ohhest possible grounds for deciding this indication, it could have said the right to an operative weapon in the home, including a handgun, is all -- is what's protected by the first amendment. they could have done that. there would have been no dicta. there would have been none of these examples in there. now, why didn't the court do that. why didn't the court follow what it always says as we decide the case before us. we can ask all the lawyers all the nasty hypotheticals in oral arguments. we decide this case, and this case only. and we can think about the next case but we don't have to decide it. well, what did justice scalia do. he put in a series of examples of laws that are presumptively constitutional. why do you suppose he did that. does he violate his premise that we do not normally put lots of

dicta in there? i don't think so. i think he did it for one very big reason. that's how he got five votes. because some of the members of the court would have been decidedly uneasy with not saying anything else about it. as it was, the victors in the case, that i do congratulate the victors in the case, were able to say, well, see, we haven't wreaked complete havoc on the universe yet. all these laws are protected. all right. so this dicta is terribly serious as a problem for the reason i'm about to come to, which is, how does he decide that these laws are okay. he doesn't tell us. he just simply announces his conclusion. and so usually what we do is we can tell whether a law is okay because we have a standard of review. how strictly are we going to construe the constitutional right in this particular case. indeed, this standard of review which sounds like some lawyer's language is one of the rules

that the federal courts of appeal require in every brief. you have to state the standard of review applicable to the decision below that you are seeking review of before the court can decide the merits of the case. what does justice scalia say about it? he said it doesn't matter. well, it may not matter with respect to the right actually at issue with this case. but it surely matters if you're going to define the rest of the rights. so for example, suppose we have strict scrutiny applied. many people, probably here in this room, some on the podium, would support strict scrutiny. well, if we have strict scrutiny, just take the laws about felons. unable to have firearms. martha stewart is a convicted felon. so is scooter libby. so is, of course, al capone. all of them were convicted of white-collar crimes, nothing involving violence.

if strict scrutiny is applied, why is that law not overbroad. i don't have an answer. but i didn't include the dicta. similarly, if somebody is convicted of domestic violence by threatening another person with a firearm, and they plead to a misdemeanor, why should the label misdemeanor as opposed to the label felon automatically take it from one side of the equation to the other. and i suggest to you that unless we get the standard of review right, or even get a standard of review, we cannot responsibly answer the questions that are going to come up in the laws that are being litigated now. just two final words, and then i will sit down. one is, i sympathize with the problem that alan is facing, trying to control all these out-of-control people who are armchair constitutionalists. it was a wonderful thing, perhaps not such a wonderful thing when brown versus board of education was decided that there

was nobody other than naacp out there trying to look for cases to litigate. so you didn't have to worry about all these spurious legal theories because there were no lawyers willing to take on these cases let alone any funding for them at all, and the pro ses of course were not around at that time. in the way that they are now. and the second is, he has lost control over the litigation for another reason, and that is, as he pointed out, defense counsel in criminal cases have a legal obligation to raise the second amendment every time it possibly comes up. and of course, proponents of the second amendment, that is exactly the wrong context in which they want the second amendment issue litigated. so as a legal strategist, he and i are in the same category for that, i applaud his decision to go after the restriction on testing of firearms, and i don't know anything else about the law. if you have a firearm, you ought to be able to learn to use it

safely. but he's going to lose the strategic battles along the way. but it have been interesting to see what happens. and once, and if we get the standard of review straightened out, we'll have a better idea of which laws will stand and which laws will fall. thank you very much. [ applause ] >> thank you, alan. okay. now we're going to have our second round -- brief second round. i would ask each of our panelists to keep his remarks very brief indeed. let's start in the order, go in the order in which we spoke. alan, would you like -- from the -- right from your seat there. >> sure. well, very briefly, to respond to some of the things dennis had said. we do see a lot of this type of argument from dennis' group and others that the decision in heller must be limited to its facts. well, that's not exactly how our system works. the court's decision in marbury versus madison was not limited to the delivery of judicial

commissions. it had a broader principle behind it. in the heller case and mcdonald there was an announcement by the court that the second amendment secures a fundamental right and this right is to be defined with reference to the way in which it was understood by the people who framed it. there is absolutely no argument that i have seen or heard from anyone that americans in 1791 or 1868 understood the second amendment to extend no further than the home. i haven't even seen the alleged evidence for this proposition. it's true that heller and mcdonald didn't have those applications. but it's fairly clear that heller and mcdonald decided that they'd like to keep and bear arms, was actually a right to keep and carry arms, as the heller case repeatedly says. this is something that was foisted upon the supreme court in heller. the district of columbia insisted that bear arms had this exclusive military meaning, meaning to soldier to go ahead

and participate in some kind of state-sanctioned military activity. the supreme court rejected that. and it gave a very different definition for that same word. they said, no, bear, simply meant to carry. and certain other courts, lower courts have found that language useful, and in some cases. so i don't see the right is going to be cabined to the home any more than the fact that h l heller and mcdonald said shotguns are not protected. so again, we don't read these decisions as being limited to their facts. we read them as standing for broader constitutional principles. and we're going to see a meaningful right evolve from that. >> thank you, alan. dennis? >> well, i guess my point on the question of guns outside the home is that there really is nothing in heller to suggest

that the right extends beyond the home. and the formulation of the right in heller clearly is confined to the home. it is the right to keep and carry guns within the home. and for those who may argue that, to say bear means rry, therefore, decides the issue of whether there is a right outside the home, i would just remind them that when the heller court granted relief to mr. heller, towards the end of scalia's opinion, it said the district of columbia must allow mr. heller to register his gun, and then issue him a license to carry it within his home. so the heller decision itself contemplates the possibility that the right to keep and bear arms is a right to have and carry a gun within the home. i think it is, in terms of original intent, i think it is

very telling that actually the only category of presumptively legal laws, which the court in heller actually commented was established by the historical record, was the ban on concealed carry. that was the one that the court said went all the way back to the founders. and to me, that strongly suggests that there is a basis to confine the heller right to the home. thank you. >> thank you, dennis. nelson? >> okay. i just want to make a couple of short points. one, in response to dennis' remark a moment ago about scalia having said that bans on concealed carry go all the way back to the founders. it's true he tried to suggest that. he didn't quite say it. he included a long string site in his opinion to add to that impression that he was saying that, if you go actually read

the case, it doesn't establish any such thing. the other short point i want to make is in response to alan morrison's comments about the standard of review. for those of you who aren't lawyers and aren't familiar with this, the standard of review is basically a formula that courts use to express how much deference is given to legislatures when reviewing the constitutionality of various challenged laws. and they've developed a whole kind of hierarchy of standards of review. the lowest one -- the highest one is strict scrutiny. the lowest one, the one that gives the most deference to legislation is rational basis. then they have rational basis with bite, and one with two and a half bites. that's a joke. and intermediate scrutiny and all of this stuff. members of the supreme court on both sides of the ideological

divide have said for a long time that these formulas don't really tell you how cases are decided. they're used to justify decisions made on other grounds. there's a lot of evidence to support that. my favorite is the groeder decision involving affirmative action at the university of michigan law school, where they purported to apply strict scrutiny, the one that gives least deference to the legislature. when you read the analysis, it is indistinguishable from the least deference to legislature. the fact that the supreme court didn't articulate a standard of review or choose among the plethora of possibilities in their jurisprudence doesn't seem to me particularly significant. because if they had, it probably wouldn't have told us all that much anyway. >> thank you. alan? >> two quick points. one, alan may be sure that shotguns will be upheld, but

he's got to explain to me why sawed-off shotguns are not upheld in terms of originalism. because that's what the court in 1937. the second, the question on standard review sounds lawyerly. and it is. but what's underlying at stake here is the question of how much deference should be given to legislatures when they are trying to make predictive judgments whether society as a whole would be better off with one law or another, or one variation rather than another. and in general, we allow legislatures to make those kind of choices, when we think that the legislative process is likely to work reasonably well, that the affected interests are likely to be heard, and that for better or worse, the decision is one that's within the realm of reasonableness for most people. and it doesn't mean that the legislative choice has to be the

same in arizona, or texas, as it is in the district of columbia or new york city. it seems to me that guns, and the regulation of them, are quintessentially legislative matters. as roger said at the beginning, the gun debate has been part of our political debate for years. and in my view, it should have been kept there. and it should remain there within some very wide range of reasonableness for legislatures to do what they think is best. and that the court should grant deference, because there's no reason to think that gun enthusiasts and others who are supporting broad gun rights are not adequately represented and do not have adequate access to the legislators who are making the decisions in this case. there is no chance of a breakdown in democracy, in other words, and for that reason, no need for the court to aggressively step in, and protect those who lose in the legislative arena. >> now we're going to open up the discussion to those of you in the audience.

please raise your hand. identify yourself and any affiliation that you may have. and also, identify the speaker to whom your question is directed. let's start with this gentleman right here in front, who has his hand up. >> i'm a police lieutenant from new jersey. i have a very keen -- >> your name? >> steven rogers. i'm curious about something. the -- both sides of the argument, very good. however, mr. gura, you talked about the fringes seem to be getting all the publicity, and there's a problem with that. but mr. henigan, you said something that i think resonates with the american people. and it's something important that i think has to be expounded upon. by the way, i am a second amendment believer. okay? i believe in the right to bear arms. but mr. henigan, you used a word that i think needs to be used quite often, and that is

responsible gun ownership. so i have a question for you, and then a question for you, mr. gura. am i to leave here today believing that your side, for more intents and purposes, are in favor of the second amendment, however, as long as it is a responsible second amendment, as long as we have responsibility gun ownership, and then mr. gura, if that is the case, then why isn't our side, all right, in fact i came in here saying should i identify them as the right and the left, but then why can't we jump onboard and say, look, it's okay. we're fighting for second amendment rights. however, they're saying the same thing we're saying, but the word responsible needs to be injected in the argument. so what do i leave here today really concluding? thanks. >> that's an excellent, excellent question. and it's a question that i actually do address at length in my book "lethal logic." because i've been at this for

over 20 years. and a key strategy of the gun lobby is to make the debate about banning guns. that is the way they make the debate most polarizing. it's the way they raise a lot of money. and part of that strategy is to argue that those of us, like the brady organization, who do not advocate the handgun ban, but do advocate reasonable controls, are really being disingenuous. this debate, the nra will tell you, isn't about waiting periods, and it's not about limiting ammunition magazine capacity. these people really want to ban your guns. they really want to come after your guns. now, that's not to say that there are not americans who believe that guns should be banned, or handguns should be banned. there are. the polls show that. it's a distinct minority view. but it is not our view. and the slippery slope argument

gets us into trouble. because every time someone comes forward and says, well, can't we at least require background checks for all gun sales. we've got them for sales by licensed dealers. they're working. they could work better. but the brady bill has stopped about 1.9 million prohibited gun buyers. most of them felons, from buying guns over the counter. let's take that success story and extend it to all private transactions at gun shows, and even elsewhere. it seems like a reasonable proposal. but the response is, oh, that's just a step down the slippery slope. well, it was my hope, frankly, that after heller, and as a constitutional matter, i think heller was wrongly decided. but nevertheless, i said heller is a paradox. because even though it was wrongly decided from a legal standpoint, i was hopeful that it would, by taking gun banning sort of off the policy table, which is -- that was scalia's

term, certain measures are off the table now, banning guns is off the table, we would somehow diminish the power of the slippery slope argument to adversely affect the nature of the debate. most americans, and most gun owners, are in favor of these reasonable controls. recent polls show over 80% of gun owners want background checks for all gun sales. so do we. we ought to be able to come together on this kind of thing. >> alan? >> well, nobody goes out and supports the idea that we should have unreasonable laws, and that people should be allowed to be irresponsible. obviously the debate is about what is unreasonable and what is irresponsible. and our side of the debate believes that you do in fact have a meaningful constitutional right to have and use firearms. which means that the burden is on the government to show, or on your own, we can't protect public safety even to the degree that we normally do, even

though, of course, they're not required to do so. that is the time when people should most have access to the means of self-defense. they think it's okay to disarm people when society breaks down. so, of course, we disagree on those things. but speaking personally for myself, i would not take a second amendment case that tries to vindicate something that i believe is constitutionally within the government's power, or otherwise irresponsible. so i'm not going to take cases that claim that it's perfectly fine for mentally disturbed violent felons to have guns. you're not going to see me for a right to have the vending machines at junior high schools selling ammunition. we don't do that kind of thing. but at the same time, i would posit that our view of what is reasonable is much more consistent with the traditional american understanding of the responsible use of firearms than

the prohibitionist, minimalist view that dennis would espouse. >> next question? yes? >> i don't know what reasonable and responsible laws are. my view is that that's why we have legislatures, and they ought to decide those rather than have courts decide what's reasonable and responsible. at least in most cases. >> so in other words -- >> substantial legislative -- >> you left the door open. >> yes, of course. we have a right. there's no question about that. and if the district of columbia passed a law, the purpose was to send something through the back door that was prohibited through the front door, they shouldn't be allowed to do that. but i'm perfectly willing to give the legislature the opportunity here, dennis and alan, argue what the particulars of a particular law, and decide it the way we decided it, by having the legislators vote on it and having the mayor or

governor decide whether to sign it. >> david ritgers in the back, standing up. >> dave ritgers, cato institute. my question is for mr. henigan and mr. gura. first, to clarify a couple of points, mr. henigan, your characterization is a little off. in fact, the phoenix shooter was not law-abiding until he pulled the trigger. he lied to purchase the gun. i'm not sure why you place such focus on having a gun-free zone sign there if he would disregard the laws against murder. moving on to discretionary permitting, which you recommend, it essentially means either that all permits are denied, the situation we've seen in the willlard case in maryland is litigating, or the discretion that are objectionable. in los angeles county, or new york, these are essentially sold for campaign contributions. or used in a discretionary

manner, such as the one that martin luther king mng applied for. after a bombing of his house in 1956, he applied for a permit and it was designed for, i think, what are pretty plain reasons given the atmosphere in alabama, under their discretionary permitting system. so if it's from having no right, or is it a right that can be refused in an arbitrary manner, how is that constitutional or defensible? >> i guess my answer is supposed to be briefer than the question. but that's a little bit of a challenge. the point i was trying to make about loughner is that the nra's program is to eliminate law enforcement discretion over who gets a permit. so that if you pass a background check, and he did, when you say he lied on the form, it's not at all clear to me that he fell into one of the prohibited categories. the point is, the nra says if he

passes a background check, and he's a legal gun owner, they don't even want to impose an additional permitting requirement. that means he was a legal carrier under arizona law until he pulled the trigger. and that is the nra's vision of what's supposed to happen across the country. if you can pass a background check, then you can carry a conceal. and it is a policy which is folly. and this horrendous event shows the folly of it. the folly of it has been shown before. this just dramatizes the folly of it. and certainly, the question of an arbitrary and capricious use of government power to deny a concealed weapons permit, there may be a remedy of law for that. i'm not arguing that government should be free of civil remedies when it acts arbitrarily and capriciously. i am arguing, however, that it

is folly to take all the discretion away from law enforcement, if a law enforcement has discretion, if they look into somebody's background, you know, and they interview people who know the applicant, and they might have interviewed the community college people and learned all these facts about this guy, they would have been in a position to make him not a legal concealed carry holder. and that would have been -- that's just a much better legal system to treat this issue. >> dennis, may i ask you very quickly, has the brady center taken a position on presumptions? in other words, is the presumption that you have a right, and then the burden is upon the government to show why you should not in this case exercise it? or is it the other way around that you don't have a right, and the burden is upon the applicant to show why he should get the permit? >> i don't know that we've taken a position on that. i mean, that is something that we would leave, i think, to state law.

but the requirement that government act without being arbitrary or capricious is a fundamental principle of law that would apply to concealed carry permits. i would add on the issue of presumptions, scalia's use of the trum presumptively legal when discussing broad categories of gun laws raises an interesting question about burden of proof. normally, you know, it's -- you know, the presumption is with the individual and against the government. but here, that use of that language raises interesting questions about whether the supreme court views it differently when it comes to the right to keep and bear arms. >> alan, did you want to say something? >> first of all, as far as scalia's presumptive language, the reference is to carrying of arms in sensitive places. we don't know what sensitive places are. i suppose we all may have views about how the court can explore

that. the suggestion that you can be banned from carrying arms in sensitive places is the exception that proves the rule that you must be allowed to carry them in non-sensitive places. the supreme court has also approved the right to keep and bear arms outside the home activities as hunting, practicing at a range, i don't know too many people who go hunting with firearms inside their homes. against smaller creatures. and of course, in dennis' favorite case, u.s. versus miller, it concerned the application of a sawedoff shotgun, because mr. miller was driving it on the highways in arkansas, it was not inside his home. the reason the supreme court told the district of columbia that they had to issue heller a license to carry his gun in the home is because that's the only kind of license for which he applied. d.c. law had essentially two

different licensing requirements. there was a license to carry publicly, and if you carried publicly, without the benefit of a license, that was a felony conviction. if you carried inside your own home without the benefit of a license, that was a misdemeanor. we challenged that law, and because we challenged the carrying in the home law, that's the way the language of that came out. and of course, washington immediately repealed the carrying in the home licensing requirement. now, as far as the question raised by the questioner, the supreme court has a long tradition of requiring that in prior restraint cases, the licensing of the exercise of a fundamental right not be left to the unfettered discretion of a licensing official. we need clear standards, objective standards that are narrowly defined, that tell licensing officials when they shall and shall not issue permits. i don't have a problem with subjecting the right to carry

firearms to an appropriate licensing standard. and in most states, in fact, do have perfectly constitutional laws about that. however, when it's simply a matter of whether the officials believe you have good cause, to exercise your constitutional right, that's clearly unconstitutional. if you have the right to do something, your right to do it cannot be denied, because the government doesn't think you have a good enough reason to exercise your constitutional right. that is a classic form of prior restraint. and i can give you, in fact, in some of the briefs i do, provide chapter and verse, case upon case upon case where the supreme court has thrown out any kinds of licensing standards that rest upon these vague notions of what's in the public benefit, or when you actually need to exercise your right and all that kind of inappropriate language. >> this gentleman right here. just wait until the microphone is there.

>> richard rise, private citizen from silver spring. what hasn't been discussed at all, and it's sort of indicated by what's going on in mexico now, that maybe it's the gun industry that needs some regulation. and the first amendment -- i mean, the second amendment doesn't really come in there. we just say you can't make aka-47s except under very limited circumstances, and you can't develop -- i don't even know what they're called -- the bullets without letting your finger off the trigger. and that that's the answer to it, then it has nothing to do with the second amendment. you just regulate the industry. >> well, since we're here to discuss the second amendment, does anybody have a brief comment on that? >> yes, i think that's a very important topic that the questioner has brought up.

there is a great deal that needs to be done to regulate the gun industry. and, you know, so many of the policy ideas that need to be discussed really do not have anything to do with the second amendment. you know, there's no second amendment right to sell guns to straw buyers for drug cartels. there's no second amendment right to a very weak bureau of alcohol, tobacco and firearms. we need to give the agencies greater power to crack down on corrupt dealers. we need to limit the number of handguns that can be sold at any one time to reduced gun traffic. we need to ban assault weapons, and high-capacity magazines. there are so many of these kinds of sensible policies that would save countless lives. and there simply is no argument that they violate the second amendment or set us on a

slippery slope toward gun confiscation. >> the gentleman with his hand up in the front row, of the back. >> thank you. my name is george lawrence. i'm a semi-retired psychologist. i'm an avid hunter and self-protectionist. one quick comment and one i think pretty quick question. it seems to me that it's absurd to talk about bearing arms within the home. as if you're going to walk around, marching around carrying a home. for better or worse, i think it's pretty obvious that's what it means, to carry a gun arnold. the question i have is having noticed and appalled at it, spokes people for gun organizations asserting the necessity for the private ownership of assault rifles with high-capacity magazines, justified by thomas jefferson's regrettable comment as a way to

prevent encoaching government, makes me wonder whether there's any substantial body of legal opinion that supports a constitutional right to prepare for armed insurrection. >> nelson, you may be an expert on that issue. >> well, i don't know about informed legal opinion, but in justice scalia's opinion in heller, he acknowledges that part of the purpose of the second amendment is to enable the citizenry to resist, or more importantly deter attempts at tierney. and i think he's right about that. and in fact, the -- it's important to distinguish between this caricature of the kind of argument that he was alluding to, namely that we have a second amendment right of insurrection, or something like that, which is not true, but there's a long tradition, articulated by james

madison, for example, according to which tyranny is less likely to be imposed on an armed citizenry. why is that? because it's more costly to do it. and the fact that through technological and social changes, there's certainly no doubt that the 101st airborne could defeat any group of american citizens with their hunting rifles. that's certainly true. that doesn't change the fact that in less extreme situations, government oppression, government violence can be deterred by the fact that there are armed citizens. because they raise the prospective cost, or raise the risk of engaging in tyranny. and there are examples of that. for example, durng the '60s in the civil rights movement, where the government and quasi government organizations like the ku klux klan were deterred

by visibly and organized groups of blacks and civil rights workers arming themselves to make it more costly to oppress them. although this kind of operates at the margin nowadays, not in the kind of ultimate extreme sense that people like to think of it, it does not mean that an armed citizenry is no deterrent at all against illegal government oppression. >> can i comment on that? >> the gentleman right behind the gentleman who spoke? >> right. i'm brian bishop from the ocean state policy research institute in rhode island. although anything i have to say certainly isn't considered a policy that our think tank has established. but i'm struck by the contrast that is attempted to be drawn between the first amendment and

the second amendment, only because certainly the rhetorical resort in recent -- in the recent contemporary news cycle has been to suggest that indeed the first amendment was what was at fault in the shooting in tucson. and so i think it's somewhat of a kinard to suggest there's a seemingly broader difference that the first amendment can hurt you and the second does. at least when not acknowledging that one's own camp, or many in it, are suggesting differently. i'm wondering if you've considered that conundrum. >> anybody wish to comment on that? >> yes. i mean, you know, it may very well be useful to have a public discussion at this juncture about the civility of our discourse, et cetera. captions copyright national cable satellite corp. 2008

>> the judiciary committee will come to order. welcome to everybody. appreciate the members who are here as well as our witnesses. it's nice to see so many people in the audience interested in such an important subject as well. one quick announcement as most members know but not everybody else may know, we are expecting votes in 15 minutes. however we're only having two votes and will be taking a recess for about 20 minutes. we'll return to resume the hearing. i'm going to recognize myself in opening statement and turn to the ranking member for his opening statement as well. the purpose of this hearing is to discuss the need to reduce the waste in our health care system caused by defensive medicine. this practice occurs when doctors are forced by the threat

of lawsuits to conduct tests and prescribe drugs that are not medically required. according to a harvard university research study, 40% of medical malpractice lawsuits filed in the united states lack evidence of medical error or any actual patient injury. but because there are so many lawsuits, doctors are forced to conduct medical tests simply to avoid a possible lawsuit. taxpayers pay for this wasteful defensive medicine which adds to all our health care costs without improving the quality of patient care. a survey released last year found defensive medicine is practiced by nearly all physicians. president obama himself acknowledged the harm caused by defensive medicine stating "i want to work to scale back the excessive defensive medicine that reinforces our current system and shift to a system where we are providing better care simply rather than simply more treatment."

yet the health care legislation he signed does nothing to prevent defensive medicine. in fact, it makes matters worse by allowing trial lawyers to opt out of any alternatives to health care litigation proposed by the states. by exposing doctors to even more lawsuits if they fall short of any of the many new federal guidelines the law creates. the encouragement of lawsuit abuse will not only make medical care much more expensive, it will also drive more doctors out of business. t the judiciary committee will model california health care reforms. those reforms have a proven record of reducing medicine, reducing health care cost and increasing the supply of doctors. there is a clear need for reform at the federal level. many states supreme courts have nullified reasonable litigation management provisions enacted by

state lennel slate tgislaturleg. that may be the only means of addressing the state's current crisis in medical professional liability and restoring patient's access to quality health care. we need to stem the flow of doctors from one state to the other as they flee states to avoid excessive liability costs. doctors should feel free to practice medicine wherever they want and patients should be able to obtain the medical care they need. last year, the congressional bulgt office determined the package would reduce the budget deficit an estimated $54 billion over the next ten years. that was a conservative estimate. anotr cbo report estimate that is premiums for medical malpractice insurance would be an average of 25% to 30% blow what they would be under current

law. rising litigation awards are responsibility for skyrocketing medical professional liability premiums. this report state that is the gao found losses on medical malpractice claims which make up the largest part of insurer's cost appear to be the primary driver of rate increases in the long run. the gao also concluded that insurer profits "are not increasing indicating that insurers are not charging and profiting from excessively high premium rates." the national commission on fiscalesponsibility and reform which was created by president obama also supports health care litigation eform in his 2010 report. "many members of the commission also believe that we should impose statutory caps on punitive and noneconomic damages and we recommend that congress consider this approach and evaluate its impact." as a usa today editorial

concluded one glaring omission from the health care law was the significant tort reform which was opposed by trial lawyers. i look forward to hearing from our witnesses today who will help us access the extent othe current health care litigation costs. i'm now pleased to welcome the remarks of the ranking member, congressman john calliers. >> thank you, chairman smith and members. this is our first hearing in the 112th session, and i would like to just add for your consideration my recommendation s that we review, in connection with health care, the antitrust exemption that health insurance companies enjoy.

mccarron ferguson exemption, and the sunshine litigation act that ensures and prevents secret settlements from being used to endanger the public safety are sealed, those who may be guilty of fraudulent acts, including the medical community, that in turn would protect all patients and protect professionally responsible doctors from abuse of claims of wrongdoing. and th you remember the act that me and a former member, campbell, introduced that empowers doctors to negotiate and even playing field with health insurers.

so i'd like us to kindly consider those measures that might be more important in an ovsight hearing on a subject matter that members of congress have already announced that they're going to introduce, namely hr 5, which i expect will be coming down the pike one day next week. the letters are already circulating on it, and so i find an oversight hearing on a -- for a bill that's being written to be the subject will come straight to our committee. it isn't exactly reverse, but

there's a certain irony in the way this is coming off today. i just wanted to put it in the record. now, legislative hearings should be held prior to the oversight hearings but also i hope that we can get into the issue of the shortage of doctors in rural areas, which is critical and which many of us view would be increased by a cap on medical liability. this $250,000 cap, most of our

witnesses here today realize that that may have a perverse effect but it's all over with. now, about thelarge number of cases file d, one out of every eight cases filed that ever results in a lawsuit, and that's because, with the statute of limitations, attorneys have to include in the filings, many people who are -- may not be involved and are usually excluded from any trial liability, but they get counted as the ones that are sued.

so i'm looking forward to a discussion about that. now, we have states that constitutionally preclude any limitation on medicare damages. kentucky and iowa limit the damages. dr. hoven is from kentucky. dr. weinstein is from iowa. kentucky is one of the four states that constitutionally prohibit limits on mages, but there are other states, arizona, pennsylvania, wyoming, including the trauma center that provided such excellent care to our colleague, gabby giffords, are all, i think under some danger

presented by some of the trends that we're expecting in hr-5. i think it's something we ought to consider. i close with just a comment about the real costs of medical malpractice claims. there are only a fraction of the real costs, and i end on this note. the sixth largest cause of death in the united states of america medically are malpractice cases. so i hope that as this discuson rolls out this morning, we will be considering what we do with the hundreds of

thousands of people that could be adversely affected whose liv time costs, even though they're innocent and the case is supported by the court and judgments are entered but with a $250,000 cap, as many of us know on all the hearings we have had prior to now, that this would be very minimal indeed. i thank you for the time. >> i thank the ranking member for his comments. we're now going to take a short recess so members may vote. when we return, i will recognize the chairman and ranking member of the constitutional law sub committees for their opening statements. they have jurisdic

the committee will resume our hearing and i'll now recognize the chairman of the constitutional law subcommittee, the gentleman from arizona, mr. franks, for his opening statement and then we'll go to the ranking member of the constitutional law subcommittee. >> well, thank you, mr. chairman. mr. chairman, the medical liability litigation system in the united states, i think, by all accounts is broken and in desperate need of reform. the current system is as ineffective a mechanism for adjudicating medical liability claims as it can be, which leads to increased health care costs, unfair and unequal awards for victims of medical malpractice and recuduced access to health care for all americans.

unfortunately the massive health care overhaul that president obama signed into law last year did not meaningfully address medical liability reform. thus we are here today to examine this continuing problem and evaluate national solutions to this, what i believe to be a crisis. one of the largest drivers of this crisis is the practice of defensive medicine. defensive medicine leads doctors to order unnecessary tests and procedures, not, mr. chairman, to ensure the health of the patient, but out of fear of malpractice liability. the cost of defensive medicine is indeed staggering. according to a 2003 department of health and human services report, the cost of defensive medicine is estimated to be more than $70 billion annually. additionally, medical liability litigation increases the cost of health care by escalating medical liability insurance

premiums. this, in turn, leads to higher costs throughout the entire health care system and reduces access to medical services. however, mr. chairman, despite the increased costs medical liability litigation imposes, this litigation fails to accomplish its ostensible purpose, tort law first place, that is fairly compensating the victims and deterring future negligence. the system fails to compensate victims fairly for several reasons. first, according to the studies, the vast majority of incidents of medical negligence do not result in a claim and most medical practice claims exhibit no evidence of malpractice. so, victims of malpractice or most of them go uncompensated and most of those who are compensated are not truly victims. mr. chairman, medical mal practice awards vary greatly from case to case, even where

the claims and injuries are virtually identical. finally, attorneys regularly reduce damages awarded to victims by more than 40% through fees and costs. moreover, there appears to be little evidence to suggest the current medical liability system deterz negligence, but the available evidence seem oz to suggest the threat of litigation causes doctors not to reveal medical errors and to practice defensive medicine. and this, of course, subjects patients to unnecessary tests and treatments once again. so we must reform the medical liability system in the united states, mr. chairman. among other benefits reform could do some of the following, could lead to a significant savings on health care. it could reduce the practice of defensive medicine. halt the exodus of doctors from high litigation states and medical specialties, improve access to health care, and save the american taxpayers billions of dollars annually while increasing the affordability of health insurance. mr. chairman, meaningful medical

liability reforms have worked in states such as california and texas and it is time for action at the federal level to extend the benefits of reform to all americans. and i thank you for the time and yield back. >> thank you, mr. franks. the gentleman from new york, mr. nadler, the ranking member of constitutional law subcommittee is recognized for his opening statement. >> thank you, mr. chairman. mr. chairman, i've not prepared an opening statement because i didn't know we were going to have opening statements for rankings and the chairman of the subcommittees, but i'll make an opening statement nonetheless. i have always believed that this problem is the wrong problem and it is a solution in search of a problem. if you look at the evidence over many years and i've looked at the evidence since 1986 consideration of reforms to this problem in the new york state assembly when i was a member there, i've been involved with this off and on for 25 years, you find that the real problem is not the excessive costs of

malpractice or that -- the excessive costs of malpractice insurance is not caused by lack of the so-called tort reforms that are being advanced here and that have been advanced over the years, namely making it harder to get attorneys capping fees or capping recoveries. but these recoveries -- capping the recoveries would simply be unfair to people who are very seriously injured. first of all, we know that most people who suffer real damages as a result of medical negligence never sue. so the amount of recovery is very small compared to the amount of costs. secondly, study after study has found that the real problem is that the states, some people might say the federal government should do it, but that's a separate discussion, but the states in any event whose job it is under current law are not disciplining doctors that something like 90 or 95% of the claims dollars that are awarded come from 2% or 3% of the

doctors. those 2% or 3% of the doctors are hurting patients, killing patients and should not be practicing medicine. they should be stripped out of practice and if they did, everybody else's malpractice premiums would go down because the amount of costs would go way down and the other 97% or 98% of doctors would find the malpractice premiums much reduced. now what do we find from the kinds of proposals that we consider? number one, in may 2009, wellpoint, a major malpractice insurance, said liability was not driving up health insurance premiums. the -- an economist at harvard university, in an article malpractice lawsuits are a red herring published by bloomberg in june of last year concluded that medical malpractice dollars are red herrings. there is so many other sources

of inefficiency. we know that preventable medical errors kill as many as 98,000 americans each year at a cost of $29 billion. and this -- these proposals would do nothing about that. we're told that the defensive medicine is costing us huge amounts of money and incleesing the cost of the medical system as a whole. the gao, the government accountability office, issued a statement saying the overall prevalence in cost of defensive medicine have not been reliably measured so we don't really know. studies designed to measure physicians defensive medicine practices examined physician behavior and specific clinical situations such as treating elderly medicare patients with certain heart conditions. given their limited scope, the study's results cannot be generalized across the health care system. multiple gao studies concluded eliminating defensive medicine would have a minimal effect on reducing overall health care costs. but the proposals that i assume will have before us, the

proposals introduced by the colleague on the other side of the aisle every single year, all have in common putting a $250,000 or so-called -- limit on noneconomic damages, that is to say on damages other than direct medical costs and lost wages, which may be the main damages for someone whose wages you can't measure, like a college student or a child because you don't know what his wages are going to be or would have been. $250,000 is not very much. they felt that $250,000 was a reasonable amount then. in today's dollars, or rather in 1975 dollars, that's worth $62,000. would they have enacted a $26,000 cap in 1975? and if we wanted to take the 250 and inflate it to keep it at the same value, it would be over a million dollars today. so if we're going to be -- if we're going to pass this kind of legislation, which i hope we won't, at the least we should put in an inflation factor and start at a million dollars if we

want to duplicate what micra did in california. they did not prerhee dureduce ts at all. only after insurance reform was enacted in 1988 by california did the insurance premiums level off and actually go down a bit. but for the 13 years, the perfect experiment for the 13 years, which california had the tort reform, but not the insurance reform, the premiums went up 450%. when the insurance reform was enacted, premiums went down 8%. so maybe we should be talking about insurance reform instead of tort reform, but unfortunately that's not in front of this committee. so i think we're off on the wrong track if we're concentrating on this. and i see the red light is on. i apologize for exceeding my time. i yield back whatever time i don't have left. >> thank you, mr. nadler. with that objection, other members opening statements will be made part of the record and now i'll introduce our witnesses. our first witness is dr. ardis

hoven, chair of the american medical association board of trustees. prior to her election to the board, dr. hoven served as a member and share of the ama council on medical service. she was a member of the utilization review and accreditation commission for six years and served on its executive committee. most recently she was appointed to the national advisory council for health care, research and quality. we welcome you. our second witness is joanne doroshow, executive director of the center for justice and democracy. miss doroshow is the founder for the center of democracy and americans for insurance reform. she is an attorney who worked on issues regarding health care lawsuits, since 1986 when she directed an insurance industry and liability project for ralph nader. welcome to you. our third witness is dr. stuart weinstein, a physician spokesman for the health coalition on liability and access. dr. weinstein is a professor of orthopedic surgery and professor

of pediatrics at the university of iowa. he is a former chair of doctors for medical liability reform and we welcome you as well. just a reminder, each of the witnesses' testimonies have been -- or will be made part of the record. we do want you to limit your testimony to five minutes. and there is a light on the table that will indicate by its yellow light when you have one minute left and then the red light will come on when the five minutes is up. so we look forward to your testimony and we'll begin with dr. hoven. >> thank you, and good morning. chairman smith, ranking member conyers and members of the committee on the judiciary, as stated, i am dr. ardis hoven, chair of the american medical association board of trustees and a practicing internal medicine physician and infectious disease specialist in lexington, kentucky. on behalf of the ama, thank you for holding this hearing today to talk about this very important issue. this morning i will share with you results from ama studies that prove how costly and how often unfair our medical

liability system is to patients and physicians. most importantly i will talk about a solution. that solution is a package of medical liability reforms based on reforms that have already been proven effective in states like california, texas, and michigan. our current medical liability system has become an increasingly irrational system driven by time consuming litigation and open ended noneconomic damage awards that bring instability to the liability insurance market. it is also an extremely inefficient mechanism for compensating patients harmed by negligence where cost courts and attorney fees often consume a substantial amount of any compensation awarded to patients. let me share with you some of the alarming statistics from an august 2010 ama report that shows how lawsuit driven our system has become. nearly 61% of physicians aged 55

and older have been sued. before they reach the age of 40, more than 50% of obstetricians, gynecologists have already been sued and 64% of medical liability claims that closed in 2009 were dropped or dismissed. these claims are clearly not cost free and let's also not forget the emotional toll on physicians and their patients involved in drawn out lawsuits which is hard to quantify. out of fear of being sued, physicians and other health care providers may take extra precautionary measures known as the practice of defensive medicine. a 2003 department of health and human services report estimated the cost of the practice of defensive medicine to be between 70 and $126 billion per year. every dollar that goes toward medical liability costs is a dollar that does not go to

patients who need care, nor toward investment in physician practices, a majority of which are small businesses that create jobs that benefit local and state economies. the good news is there are proven examples of long-term reforms that have kept physicians liability premiums stable, but more importantly have ensured and protected patients' access to health care. back in 1974, california was experiencing many of the problems we are facing today. in response, california's legislature enacted a competencive package of reforms called the medical injury compensation reform act of 1975, over 35 years ago, which is now commonly referred to as micra. while total medical liability premiums and the rest of the u.s. rose 945% between 1976 and 2009, the increase in california premiums was less than one third of that, at just about 261%.

recent public polls found a majority of americans support reasonable limits on noneconomic damages, and believe that medical liability lawsuits are a primary reason for rising health care costs. we look forward to the introduction of the health act that mirrors california's reforms and also protects current and future medical liability reforms at the state level. by supporting patient safety initiatives along side enacting meaningful liability reform, congress has the opportunity to provide access to medical services, reduce the practice of defensive medicine, improve the patient physician relationship, support physician practices and the jobs they create, and curb a wasteful use of precious health care dollars, the costs both financial and emotional of health care liability litigation. on behalf of the ama, i would like to extend our appreciation for the leadership of the

committee and the ama looks forward to working with you all to pass federal legislation that would bring about meaningful reforms. and thank you. >> and dr. hoven, thank you. and miss doroshow. >> thank you, mr. chairman. mr. conyers, members of the committee, the center for justice and democracy of which i am executive director is a national public interest organization that is dedicated to educating the public about the importance of the civil justice system. this is the fourth time i've been asked to testify before a congressional committee in the last nine years on this very important subject of medical malpractice and i'm honored to do so. i also spoke at two different informal hearings chaired by mr. conyers which featured families including children from all over the country whose lives were devastated as a result of medical negligence. one of those hearings lasted four hours as victim after victim told their stories and pleaded with congress not to cap

damages and enact tort reform. they're all paying rapt attention today from afar and i will do my best to represent them, but i do hope this committee decides to hear from them directly because these families are always the forgotten faces of the debate about how to reduce health care and insurance costs. while i understand this is an oversight hearing and we do not know what bills may be considered by the committee, typically the push has been for caps on economic damages and other measures that force patients who are injured by medical negligence or the families of those killed to accept inadequate compensation. meanwhile, the insurance industry gets a pocket money that should be available for the sick and injured and they force many to turn elsewhere, including medicaid, for further burdening taxpayers. and by the way, with regard to the california situation, rates did not come down in california for doctors until 1988, when insurance regulatory reform was passed. it was not due to the cap. these measures will reduce the financial incentive for hospitals to operate safely

which will lead to more costly errors. in fact, when congressional budget office looked into it, they looked at several studies that looked at the negative health outcomes of tort reform and one of them found -- would lead to a .2% increase in mortality in the overall death rate in this country. that's another 4,000 killed. now while i cover many issues in my written statement, i want to highlight a few other points. first of all, there is an epidemic of medical malpractice in this country. it has been over a decade since the institute of medicine study finding 98,000 dieing in hospitals every year, costing 17 to $29 billion and experts agree there has been no meaningful reduction in medical airers in the united states. in fact, in november, just last november, hhs reported that one in seven hospital patients experienced a medical error, 44% are preventable. second, medical malpractice claims and lawsuits are in steep decline according to the national center for state courts

and the insurance industry's own data. to quote from the harvard school of public health study that the chairman mentioned, portraits of a medical malpractice system that is stricken with frivolous litigation is overblown and only a tiny percentage of victims ever sue. this is the press release issuing that study that said study casts doubt on claims that the medical malpractice system is plagued by frivolous lawsuits. premiums have been stable and dropping since 2006 and if you read the industry trade publications, you'll find out that insurers so overprice policies in the early part of the last decade that they still have too much money in reserves and that rates will continue to fall. and this has happened whether or not a state has enacted tort reform. as far as texas, health care costs did not come down when caps passed at all. applications for new licenses are only part of the picture.

when it comes to physicians engaged in patient care, in other words, considering physicians who retire, leave state or stop seeing patients, the data shows that the per capita number has not grown. in fact, the number grew steadily through 2003 and leveled off. this is not a pattern you would expect of 2003 tort reform law is responsible. when competing for physicians, texas is more hampered by the extraordinary size of its uninsured population, which exceeds just about every other state. in terms of defensive medicine, cbo found that it was not pervasive. .3% from slightly less utilization of health care services, but even this is too high. we what we don't -- what cbo did not consider, for example, are what happens -- the burdens on medicaid, when there are no lawsuits, or the fact that medicare and medicaid liens and subrogation interests. if a lawsuit isn't brought, they can't be reimbursed.

all the costs need to be added in. finally, these bills all ignore the insurance industry's major role in the pricing of medical malpractice insurance premiums, an industry that is exempt from antitrust laws. this needs to be repealed. we need to do more to weed out the small number of doctors responsible for most malpractice and reduce claims, injuries and deaths and lawsuits. thank you, mr. chairman. >> thank you, miss doroshow. dr. weinstein. dr. weinstein, if you'll push the button on the mike, we can't quite hear you. there, thank you. >> thank you, chairman smith and ranking member conyers for holding this important hearing to consider fixing our country's broken medical liability system. i'm stuart weinstein, the ponseti chair and professor of orthopedic surgery and professor of pediatrics at the university of iowa. i've been practicing for more

than 35 year and the past president of the american academy of surgeons. i would like to begin today by asking each of you to put yourself in someone else's shoes. imagine your young pregnant mother living in rural america with no practitioner or your local hospital is closed its door to obstetrics or imagine your young doctor saddled with debt trying to pick a specialty. despite the great need for obgyns and general surgeons, you choose a safer specialty because of risk of lawsuits. and imagine being an orthopedic surgeon but you're facing high costs for liability insurance and the threat of potential litigation. to reduce your liability, you decide to avoid high risk cases like trauma cases or maybe you decide to retire altogether. dilemmas like these play out across america every day as medical lawsuit abuse undermines both our health care system and the doctor/patient relationship. moreover, medical lawsuit abuse is driving up health care costs at a time when we're still

reeling from one of the worst recessions in modern times. i'm here today to ask you to create a climate for patient centered care by reforming the medical liability system that continues to put everyone's health care at risk. the current system is clearly broken and there is widespread agreement among lawmakers, health care policy experts, opinion leaders and the public that reform is needed. today more than 90% of obgyns have been sued at least once. neurosurgeons, once every two years on the average. and as you know, most claims are without merit. this toxic litigation environment is fundamentally changing the doctor/patient relationship. it is driving doctors to get out of medicine or to practice defensive medicine. defensive medicine is the antithesis of health care reform because it increases health care costs and has the potential to lessen access to care and quality of care in two ways. first, doctors practice avoid

assurance behavior including ordering tests, particularly imaging studies or referring patients in order to provide an extra layer of protection against abusive lawsuits. a recent gallup survey found the fear of lawsuits was the driver behind 21% of all tests and treatments ordered by doctors which equates to 26% of all health care dollars, a staggering $650 billion. defensive medicine includes avoidance behaviors where doctors eliminate high risk procedures like head injury, trauma surgery, vaginal deliveries or procedures prone to complications and they avoid patients with complex problems or patients who seem la tithous. in 2008, half of america's counties had no practicing obstetrician. this shouldn't be happening in america. there are remedies to fix this broken system but it is imperative we act now before defensive medicine practices and

costs associated with it becomes the standard of care. before health care costs go high are an unemployment along with it, before doctors shortages change the very nature of our health care system. successful reform efforts in states, especially california and texas have given us a blueprint for federal medical liability reform legislation. hicla outlined several legislative proposals that preserves state laws working effectively to make medical malpractice systems fair for both patients and health care providers and broaden coverage across the nation. i'd like to close by telling you about maryland gynecologist dr. carol ritter who stopped delivering babies in 2004 when her liability premiums hit $120,000 a year. she couldn't deliver enough babies to pay the trial bar's tab. today, dr. ritter maintains a gynecology practice and still delivers babies, but does it in haiti, and honduras and dozbosn.

she says she does it for the sheer joy of what she does best, but she can't do it in maryland. i would say to you today, that something is very wrong when a caring, committed physician like dr. ritter can't bring an american baby into this world for fear of frivolous lawsuits. ladies and gentlemen, you have the ability and i think the responsibility to help right that wrong. thank you very much. >> thank you, dr. weinstein. and i'll recognize myself for questions and dr. hoven would like to address my first question to you. you heard mention a while ago and you know, of course, that the congressional budget office estimates that we would save $54 billion over ten years if we reduce the cost of defensive medicine. there are other studies, for instance the pacific research institute says that defensive medicine costs $191 billion. pricewaterhousecooper study puts it at $239 billion and newsweek

reports that all told doctors order $650 billion in unnecessary care every year. i don't know which of those figures is correct, but they all point to the same direction, which is defensive medicine is expensive and costs, let's say at a very minimum tens of billions of dollars, probably every year. my question is this. who pays for the cost of all that defensive medicine? >> thank you. we all pay for the cost of that defensive medicine. at the end of the day, patients pay for it, we pay taxes that pay for it, we all pay for the cost of that defensive care. now, it is very important to realize, in the culture of fear in which we are all practicing medicine now, i use that term because i think it is very real, this most physicians want to practice medicine the best possible way they can. they want to do the best job they can, but what they

recognize is that their clinical judgment is not allowed to carry any weight in the court of law. so that in fact we do these things for assurance, to protect ourselves. and at the end of the day, that's where those costs do come around. >> okay. >> thank you, dr. hoven. dr. weinstein, the congressional budget office estimates that if we were to enact medical liability reform, premiums would drop 25 to 30%. who benefits from a drop in premiums of 25% to 30% or maybe i should say is the benefit limited to the physician and medical personnel or not? >> i think ultimately, mr. chairman, is that when medical liability premiums begin to drop, the culture of fear amongst physicians eventually will change. it is a cultural change that will have to occur over time. and once that cultural change occurs, then the practices of defensive medicine which you've heard about over and over again will eventually change as well and our health care costs will go down. so ultimately patients and the

american public will benefit. >> patients and the consumers benefit. my last question is to both dr. weinstein and dr. hoven. i want to ask you all to respond to a point that miss doroshow made that where he had said is wasn't medical liability reform that reduced premiums it was insurance reform. and she gave the example of california. who would like to respond, either california or texas, dr. hoven? >> i'll go first. it takes eight to ten years to see the effects of these reforms when they are enacted. there really is not firm, hard evident that in fact the insurance change was the result. it was the fact that across the country it takes eight to ten years to begin to see the evolution of change when these reforms are put in place. >> okay. and dr. weinstein? >> i think all would agree that the system in california compensates the patients in a much more rapid fashion, and

also more appropriate so patients who are injured get the majority of the reward. >> okay. and dr. weinstein, or dr. hoven, respond to this, if you would, in regard to the california insurance reform, i'm looking at a newspaper article that said that proposition 103 that required a rollback of insurance premiums and not california's health care litigation reforms have controlled medical professional liability premiums. that's the assertion. accord to the orange county register, "a rollback under proposition 103 never took place because california supreme court amended proposition 103 to say that insurers could not be forced to implement the 20% rollback if it would deprive them of a fair profit." it is hard to see the correlation therefore between the insurance reform and the drop in premiums and clear the drop in premiums were a result of the medical liability reforms. i thank you, all, for your responses and i'll recognize the ranking member for his questions. >> thanks, chairman. and i thank the witnesses.

where are we now in terms of the health care reform act, which sometimes is derogatorily referred to as obama care. i use the term because i think it is going to go down historically as one of the great advances in health care. but didn't the health care reform act, which still, by the way, is the law of the land and will be until the president signs the repeal, which i wouldn't recommend anybody to hold their breath on, we

provided money for this very -- for examining this very same subject, section 10607. does anybody know anything about that here? >> yes, sir. >> i do. >> mr. conyers, are you referring to the demonstration projects? >> yes. the $50 million for five-year period that demonstration grants for the development to states for alternatives to current tort litigation. that's right. >> if i could address that question, i would say that the way the demonstration projects, which haven't been funded, i don't believe yet, the way the demonstration projects are outlined, i believe that the patients can then withdraw at anytime and choose another alternative. and i'm a full-time educator clinician scientist and when you design a research study, which allows patients to cross over or

change, you don't get good information at the end of the day. it is not the good scientific method, if you will, if you want to find out what works best. so i would argue that the way that is designed has a flaw to it. and also there have been demonstration projects across the states for a number of years. >> if i could comment? >> could i? >> sure, you can. >> actually, in conjunction with the provision in the health care bill, hhs has actually awarded now a number of grants to many states, up to $3 million to develop alternative procedures and other kinds of patient safety oriented litigation reforms. so those grant proposals were already given. there was money. and these demonstration projects are in the process of being explored now at the state level.

i live in one state where that is true, new york. >> well, are we here -- can i get a response from all of our witnesses about the whole concept of providing health care for the 47 million or more people that can't afford it? and are any of you here silently or vocally in support of a universal health care plan? >> i may speak to that, sir. >> sure. >> the american medical association recognizes this is not a perfect bill, but it is a first step in getting us to where we need to be in this country. medical liability reform, alternative mechanisms for dispute resolution that are to be funded through that

legislation are under way as we speak. we in no way support a mechanism that does not recognize that every person in this country needs affordable care and access to quality health >> well, the bill that was just repealed yesterday provided for millions of more people getting health care because we raised the ceiling on medicaid and we allowed the inclusion of children in the parents' health care plan until age 26, a seven-year increase. did that help any? >> we'll wait and see. >> we'll wait and see, you mean you wait to see if there are any parents that want to keep their kids included for seven more years? i haven't found one yet that

doesn't want that provision in the bill. >> let me go back to my earlier comments. access to care for everyone is what we want and need in this country. >> well, i know it. yeah, that's a great statement. that's what i want, too. and that's why i was asking you about some of the provisions of the bill that was just dunked last night by the 112th congress. but i thank you, mr. chairman. >> okay. thank you, mr. conyers. the gentleman from new york is recognized for his questions. >> thank you, mr. chairman. i thank the witnesses for appearing today. i'll ask dr. weinstein, when i looked at the national commission on fiscal responsibility and reform, the president's commission to explore ways to reduce the deficit, it was recommended in there that health care litigation reform as a policy

could save money and go to limit the deficit. deficit is a huge issue and a priority for many new members of congress, of which i am one. do you agree that lawsuit reform could and would reduce the deficit? >> yes, sir, i do. i think that's been shown. i think the cbo report that senator hatch had requested information on showed it reduced it by $54 billion over ten years and depending on what study you look at, i think there's been widespread discussion in the media by members of congress and also by various groups who have looked at this issue, senator kerry and senator hatch this week, and i think both felt it would be a significant step forward addressing the medical liability issue. i think to us there's no question that this would indeed reduce health care spending. >> dr. hoven, would you agree? >> i most certainly would agree. i think clearly that's not chump

change we're talking about. we clearly need to move ahead and that's a conservative estimate. it may even be greater than that. >> and would you agree or disagree, miss doroshow? >> i disagree with that. i think what cbo did, unfortunately, avoided a number of very important issues that will end up increasing the deficit, burdening medicaid and medicare in particular. three things in particular. one is when you enact these kind of severe tort reforms, there are many people with legitimate cases that cannot find attorneys anymore, cannot bring cases. this is well documented as having happened in california. in kt fact, you had a witness before this committee in 1994 testifying to that effect and it is certainly happening in texas. so you have many people that are going to end up going on medicaid that otherwise would have been compensated through an insurance company.

second, as i mentioned, there are liens and subrogation rights that medicare and medicaid have when there is a judgment or verdict in a lawsuit. in other words, they can get reimbursed. if there's no lawsuit, that reimbursement is gone so they lose money in that regard. third, these kinds of measures are going to make hospitals more unsafe. there are going to be many, many more errors. even the cbo in its letter to senator hatch talked about one study that would increase the mortality rate in this country by .2% and that doesn't even include the injuries. so you're going to have more people hurt, more expense taking care of those people and frankly, when you enact any kind of cap on non-economic damages in particular, those have a disproportionate impact on senior citizens, children, low

income earners and certainly senior citizens, what has happened in texas with the cap, those cases really are not being brought anymore. so senior citizens who are on medicare who should have a right to seek accountability from a hospital that caused negligence, no longer are bringing those lawsuits, so medicare is paying. there are lots of costs that are going to end up increasing the deficit. >> but my understanding is that we're not looking to discourage legitimate lawsuits. we're allowing economic damages to be fully compensated in the subrogation rights that you refer to are derived from the economic damage calculation, because those are medical bills, past and future, the subrogation rights are derived from. what we're talking about is focusing in on the frivolous lawsuits that are there. i guess i don't follow your logic saying that's a reason why -- >> no, i think that's actually

not what history shows. history shows when you cap non-economic damages, there are certain classes of cases that are no longer brought. that is what has happened in california and that is what this individual -- insurance defense lawyer testified, before this very committee in 1994. entire categories of cases can no longer be brought. those that involve primarily non-economic damages. for example, one of the people we brought to washington a couple of times, a woman named linda mcdougle, she was the victim of negligence -- >> i think my time has expired there. thank you, mr. chairman. >> thank you for your questions. ms. doroshow, if you want to finish the sentence, you may do so. >> well, she had an unnecessary double mastectomy because the lab misdiagnosed cancer when she

didn't have it, and she came down to testify a few times but her damages were entirely non-economic in nature. a cap would have only affected cases, her case. >> okay. thank you very much. the gentleman from virginia, mr. scott, is recognized for his questions. >> thank you, mr. chairman. one of the problems we have in this discussion is a lot of the problems are articulated and then solutions are offered and very little effort is made to see how the solutions actually solve the problems. mrs. hoven, did i understand your testimony that physicians are routinely charging for

services that are not medically necessary to the tune of $70 billion to $126 billion? >> i'm talking about defensive medicine. >> i asked you, are those services that are not medically necessary? >> they are services that are medically indicated and medically necessary if you look at guidelines and criteria. however, what does not happen is my clinical judgment whether to employ that test is disregarded. >> are you suggesting that the services are not medically necessary if liability were not a factor, would the services be provided or not? >> it depends on the case. it depends on the situation. it depends on the environment of care. >> you're suggesting that in $70 billion to $126 billion worth of cases, services were rendered that were not medically -- were not needed? >> that's not what i said, congressman. >> what are you saying?

>> i'm saying health care delivered in the examining room, in the operating room, is driven by what is based on clinical judgment and based on assurance testing which is documentation and proving that in fact, that is what is wrong with the patient. when we talk about cost control in this country, we're talking about the fact that -- and this goes to the whole issue of cost containment, which is if, in fact, you would recognize my medical judgment and allow me to decide when it is important to do a test or not, then our patients would be better served. >> by not providing the services? >> if in my judgment, they don't need it. >> and you're not able to -- and you charge for services that in your judgment, are not needed to the tune of $70 billion to $126 billion? >> i do not do that. however, let me -- >> i mean, your testimony was

that physicians are charging $70 billion to $126 billion more than necessary and then blaming it on liability. now, is that your testimony? >> yes, that is my testimony. >> that it is not necessary, you're providing services that are not necessary. either they're necessary or they're not. >> we're practicing at a culture of fear and that culture of fear lends itself to protecting oneself. i have been sued, congressman. let me tell you -- >> wait a minute. i just asked you a simple question. $70 billion to $126 billion. i just want to know what that represents. >> that is costs for tests and procedures which, if you look at guidelines, would be medically necessary, but my medical judgment is discounted. >> that based on your medical judgment are not -- should not have been provided? >> not necessarily. >> okay. well, i'm not getting -- miss

doroshow, if physicians are charging for services that are not necessary, how is that different from medical fraud? >> that's a good question, because in order to get reimbursed, to file a claim with medicare and to be reimbursed, physicians have to file a form and certify that the test and procedure, the services that they provided, are medically necessary for the health of the patient so it does raise a question whether or not some claims may be false, if the physicians are not -- >> if someone were to do a survey to say why did you provide the service when it was not necessary, what would be the convenient answer? if they asked you why did you provide the services that were not necessary, what would be -- >> you say they -- >> because they're afraid of lawsuits so they can charge for services that weren't even needed. mrs. hoven, did you indicate that you supported a fair

determination for medical malpractice issues so that those who had bona fide cases could actually recover? >> most definitely, congressman. >> you're aware that it's estimated 5,000 to 10,000 wrongful death cases are paid every year? >> if you look at the statistics which are obviously very familiar, we are talking about apples and oranges here in many situations. we're talking about errors and adverse events as opposed to true malpractice and negligence. i think you have to be careful about the terminology. >> so what would be the barrier to 90% to 95% of the cases that were caused by medical errors from recovering? >> they should be able to recover. what the health act would do would allow them to recover. so that they would be appropriately rewarded for what happened to them in their loss. the health act talks about that in terms of all of the economic elements that are involved, including their health care.

>> mr. chairman, my time has expired. >> thank you, mr. scott. the gentleman from pennsylvania, mr. marino, is recognized for his questions. >> mr. chairman, i yield my time. thank you. >> all right. we'll go to the gentlewoman from florida for her questions. miss adams. >> thank you, mr. chair. miss doroshow, i was looking at this institute of medicine study and you cited it in your opening statements and in your packet and it says that as many as 98,000 patients die annually due to medical errors, and what we found was it has shown to be exaggerated and unreliable. isn't that true? because based on shortly after its release in 2000, the study came under heavy criticism for imprecise methodology that

greatly overstated the rate of deaths from medical errors. for example, the study data treated deaths from drug abuse as medication errors, and dr. troy brennan, the lead harvard researcher, who compiled much of the data upon the report, which was based, later revisited his methodology and determined that the actual figure could be as little as 10% of the oim's estimate. is that true? >> well, what's true is that many other studies since then have found far more than 98,000 deaths. many other institutions that have looked into it, and just in november, hhs took a look at this issue again and they found that one in seven patients in hospitals are victims of an adverse event and 44% of them are preventible. also, there was a study just also released in november of north carolina hospitals, north carolina is supposed to be a

leader in patient safety, basically finding that since the institute of medicine report, patient safety has not improved at all and it really kind of shocked the authors of this research study and they found that the errors that are causing deaths and injuries are continuing at an epidemic rate. so i would say that the 98,000 figure at this point is low and has been probably upped by every patient and government study that has looked into it since. >> so your testimony is that every adverse event is a medical malpractice issue? >> i'm looking at the studies and how they define it, and in for example the hhs study, they found one in seven medicare patients are the victim of an adverse event and 44% are preventible. >> again, are you saying that -- >> preventible errors -- >> isn't adverse, in your eyes, is an adverse event medical

malpractice? >> a preventible adverse event is. >> the other thing i wanted to know is, i know who dr. hoven is representing and i know who dr. weinstein's representing, but i couldn't find in your documentation where the justice, center for democracy and justice gets its funding. could you provide the committee with a list of your fellow and associate members so we have an accurate understanding of the point of view which you are representing, and also, you mentioned the demo projects and they are going to get grant funding. are you or anybody associated with the center for justice and democracy able to apply for those grants? >> apply for which grants? >> the ones for the research that you were speaking about earlier. >> well, we are tiny. we have about five people on our staff. we are not a high budget operation. so we don't really have the staff to do research projects like that. we hope other people would do that.

>> again, i would like to know, like your fellow and associate members, are they going to be applying for those grants? >> our associate members, i would have no information about any of that. i don't know. those grants were already -- that process has already taken place. hhs has already granted the money in new york, for example, it granted $3 million to the office of court administration in conjunction with the department of health that is looking at a specific proposal that was presented to them. so actually, i know a lot about that proposal. i know about a few of the others, but that has already happened. >> are you aware, and this goes to all three of you and i think dr. weinstein and dr. hoven have said this and i want to make sure you are aware, also, there are certain professions in the medical field that have stopped practicing because they can't

see enough patients in order to cover their insurance cost. just the cost alone, not because they have done anything wrong, but they cannot see enough patients to cover their malpractice insurance cost. >> well, i hope that also you're aware that since 2006, we have been in a soft insurance market. that's why you don't hear any longer about doctors picketing on state legislatures and capitals and trauma centers, et cetera, that we did in the early part of the 2000s when we were in a hard insurance market, when rates were going up 100%, 200% for doctors. this is a cyclical industry. this has happened in the past 30 years when rates have shot up like this. to believe the legal system has anything to do with it, you would have to believe juries engineered large awards in 1975, then stopped for ten years, then did it again from 1986 to 1988, then stopped for 17 years, and then started up again in 2001. of course, that's never been

true. the claims have always been steady and stable, so what's driving insurance, rate hikes is the insurance and accounting practices of the insurance industry. the solutions to that problem lie with the insurance industry. they should not be solved on the backs of injured patients. >> i see my time has expired. >> thank you, miss adams. the gentlewoman from texas, miss jackson-lee, is recognized for her questions. >> thank you. let me thank all the witnesses for their presence here today. i want you to know that each of your presentations are particularly respected and admired. i want to start with the representative from dr. hoven, from the american medical association, and coming from houston, i think many of you are aware, proudly so, for me, that

we have one of the greatest medical centers in the world, the texas medical center. i'm very proud of recent $150 million private donation just recently received by the texas -- by m.d. anderson so i have a great familiarity with a lot of physicians and applaud their work and thank them for some of the life-saving research they have been engaged in. but building on the present national law which is, of course, the patient protection and the affordable care act, dr. hoven, one of your peers, one of your colleagues who happened to serve in this body, senator fritz, indicated that that law was a fundamental platform upon which we could now base our desire to go forward, to have additional provisions, so i just want to get a clear understanding. it's my understanding the american medical association supported the bill.

is that correct? >> the american medical association supported parts of the bill. we believe that access to care covering the uninsured, decreasing costs and improving quality are very, very important first steps. >> so you would not -- you're telling me doctors would not support eliminating the pre-existing conditions and allowing children to stay on their insurance until age 26? >> we do support that. >> so i think a great part of the bill, you did and you probably would -- i'm not sure, maybe because you're before a large group that you don't want to say that the ama supported it, but it was my understanding that they did. i see someone shaking their head behind you. do you support the bill? did the ama support the bill? >> the ama did support the bill. we recognized it is an imperfect bill. >> you are absolutely right. i will assure you, those of us who are lawyers as well agree with you, because it is very difficult to write a perfect bill, but as dr. fritz said, this is a bill that is the law

of the land. he even said he would have voted for it. i want to clear the record that this is a bill that really does answer a lot of questions but we can always do better. let me indicate to miss doroshow, if i have it correctly, in the process of hearings, we have witnesses that represent the majority view, majority is represented by republicans, chaired by mr. smith and we have a right to have a witness that maybe has a different perspective. so to inquire of your fundinger on whether you're getting grants, every hearing, we will find that we will have witnesses that will agree with the predominant view by the majority but we'll also have in this democracy, the right to have a different view. i suppose you have a different view from the health act that is before us. is that correct? there is a bill that you have a slightly different view, is that my understanding, between this question dealing with tort reform or medical malpractice?

>> i certainly have a different view from the other witnesses, yes. >> yes. that's the point i'm making. >> yes. >> let me inquire and as i do that, i think the point that i wanted to engage with dr. hoven was to say that i want to find every way that we can work with physicians. i want their doors to be open, i want them to be in community health clinics, i want them to have their own private practice, i want them to be og-gyn. in fact, dr. natalie carroll daly, former president of the national medical association, i count her as a very dear friend but also someone who counsels me. let me be very clear. answer these two questions. what is the reality of how many frivolous lawsuits we have? you have a notation of the ho harvard school of public health. number two, insurance companies, isn't that the crux of the problem? are patients the ones charging

doctors $120,000 for insurance or is it the insurance companies who have documented that they will not lower costs even if there is a low count of medical malpractice lawsuits in that doctor's area, in that doctor's office and in that state? isn't that true? >> absolutely. >> would you just comment very quickly? let me as i say that, say to you my mother had a pacemaker for 20 years. she had a procedure to give her a new one. the next day she was dead. i would like you to be able to answer my questions if the chairman would indulge your answer, please. >> in terms of the harvard study, this is important because this is the study that gets i think misrepresented often and figures about 40% of cases are frivolous. actually, the harvard study found the exact opposite. in fact, i will read the quote from the author of that study, the leadoff. some critics have suggested that the malpractice system is inundated with groundless lawsuits and that whether a

plaintiff recovers money is like a random lottery, virtually unrelated to whether the claim has merit. these findings, the harvard school of public health findings, casts doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that the claims with merit are far more likely to be paid than claims without merit. there is a lot of extensive research done on that study and the headline of harvard press release was study casts doubt on claims that medical malpractice system is plagued by frivolous lawsuits. >> you didn't -- the gentlewoman's time has expired. thank you, miss doroshow. we will recognize the gentleman from virginia, mr. forbes, for his questions. >> thank you, mr. chairman. i want to thank all of our witnesses. i truly believe all three of you are here to do what you think is in the best interest of our patients and of the united states. i feel the same way about the members that we have up here, but we all have specific constituencie constituencies. as much as i love the chairman,

i know there are times that he's from texas and he has a texas constituency. the gentleman from arkansas has an arkansas constituency. gentlewoman from florida has a florida constituency. that's what we tell everybody, the gentleman from florida, the gentleman from arkansas. i think it's important that we know when you're testifying who your constituencies are and two of our witnesses have set that forward and the congresswoman adams asked what i think is a fair question to miss doroshow, and that is, if she would just be willing to give us your sources of public funding and your membership, would you make those public so we know who those constituencies are? >> well, we're a 501c-3 tax exempt organization and we do not release the names and information about our donors. i will say that we get different kinds of funding. we get foundation grants, for example. in fact, i started the

organization in 1998 and it was just myself, sort of sitting there writing letters to the editor with a little bit of money from a friend of mine, and i got a large grant from the stern family fund -- >> miss doroshow, i only have five minutes. the answer is that you won't let us know who your membership is and your sources of funding? >> absolutely not. >> okay. then we'll take that into account. let me just say that sometimes, this is not as complex as we try to make it. the reality is that everybody at home who watches these hearings and who looks at these issues, they know when you're talking about not changing tort reform, who the true beneficiaries of that are. i mean, they're the trial lawyers and the trial lawyers are the ones that put the dollars behind it. the trial lawyers are the ones that will sit here and tell us if we don't do this, we're going to be impacted and we could be losing our jobs. on the other hand, we know who some of the major beneficiaries

are if we do tort reform and that's some of our doctors and they tell us hey, if we don't do this, we could be losing our jobs. one of the interesting things, i can tell you, and tell this committee, i have never in my entire career, had a single constituent walk in to me and say i am worried because i can't find a trial lawyer out there. but i have been over and over coming to me now, truly worried that they cannot find doctors to represent them. secondly, when i hear people talk about the 2% or 3% of bad doctors, that sometimes falls on hollow ground because the same people that will point and say oh, yeah we can't do malpractice reform because it's 2% or 3% of bad doctors fight us every time we try to get rid of the 2% or 3% of bad doctors, the same way they try to do when we try to get rid of the 2% or 3% of bad teachers. so my question to you is this. all three of you.