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Contingent fee retainers were designed to give less-affluent persons (who could generally ill-afford hourly rates and up-front retainers) access to the courthouse. Governmental entities have their own in-house legal staff; taxpayers should not have to pay
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In the State tobacco litigation, it seemed that many of the cases were awarded to private attorneys who had been former law partners or campaign supporters of the elected official. Furthermore, there appears to have been a lack of competitive bidding in the attorney selection process. As a result, experts estimate that some plaintiffs' attorneys were paid in excess of $100,000 per hour.\1\ \1\ Professor Lester Brickman, ``Want To Be a Billionaire? Sue a Tobacco Company,'' The Wall Street Journal, December 30, 1998.
Should the prosecutorial power of government be brought against lawful, though controversial, industries? ``As the Supreme Court cautioned more than 60 years ago in Berger v. United States, an attorney for the state, `is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all'.'' \2\ \2\ Robert A. Levy. ``The Great Tobacco Robbery. Hired Guns Corral Contingent Fee Bonanza'' Legal Times, Week of February 1, 1999, 27.
ALL INDUSTRIES COULD BE TARGETS OF LITIGATION
To date, recoupment lawsuits have been filed against politically disfavored industries because plaintiff attorneys know that if courts bend the rules for controversial products, those precedents will apply equally to other industries.
In fact, some contingency fee lawyers have already publicly stated that tobacco and firearms are just the first of many industries likely to be sued in the new era of regulation by litigation. As stated, future targets of litigation could include producers of beer and wine and other adult beverages, manufacturers of pharmaceuticals, chemicals, and automobiles, Internet providers, the gaming industry, the entertainment industry, and fast food restaurants.
SEPARATION OF POWERS VIOLATED
Legislating public policy in the courtroom violates the ``separation of powers doctrine''--the fundamental rule upon which this country's entire system of government is based. The job of legislatures is to legislate; the job of courts is to interpret the law. This bedrock principle of government should not be eroded for the sake of political expediency and political theater.
--
Statement by Victor E. Schwartz, Counsel, American Tort Reform Association, June 23, 1999
THE PRINCIPLE OF EQUAL JUSTICE UNDER LAW IS PRESERVED BY THE LITIGATION FAIRNESS ACT
The Litigation Fairness Act helps assure equal justice under law; that is why the American Tort Reform Association supports it. Liability law should be neutral. Its principles should apply in the same way to all defendants. A basic principle of system of justice is equal justice under law.
Unfortunately, legal principles developed in a few tobacco cases did not apply neutral principles. They gave power to state governments under a fiction called the ``quasi-sovereign doctrine,'' greater power in the law than was possessed by an injured individual. New cases filed by cities against gun manufacturers also may create new principles of law that give those cities greater rights than injured persons. There is little doubt that an engine behind these new principles is the unpopularity of those defendants.
These principles may be limited to so-called ``outlaw defendants''--people who make guns, tobacco, liquor, or other products that significant segments of our society do not like. On the other hand, the principles may apply equally to others. If that is true, those principles can apply against people who make fast foods, automobiles that can go over 100 mph, motorcycles, hunting knives, and even the entertainment industry.
The Litigation Fairness Act preserves the principle that an injured person's right to sue is paramount over government rights, where the government has suffered some indirect economic loss because of that person's harm. It restores equal justice under law and neutrality within our tort system.
For those reasons, the Americans Tort Reform Association supports the Litigation Fairness Act.
By Mr. FRIST:
S. 1270. A bill to establish a partnership for education progress; to the Committee on Health, Education, Labor, and Pensions.
THE EDUCATION EXPRESS ACT
Mr. FRIST. Mr. President, I ask unanimous consent that a summary of the Education Express Act be printed in the RECORD.
There being no objection, the summary was ordered to be printed in the RECORD, as follows:
The Education Express Act (Ed-Express)
OBJECTIVE
Funds would reaffirm our national commitment to state and local control of education. The purpose of this Act is to infuse significant new dollars into the hands of parents, communities, and state and local governments to improve the education achievement of students. This legislation unties the burdensome and expensive federal strings on education dollars by sending more money straight back to the states and classrooms.
States may elect to receive elementary and secondary education funding by ``Direct Check.'' Most importantly, it requires that 98 percent of the funding be used directly at the local level. Incentives such as replacing existing burdensome federal categorical programs are provided to encourage states to choose the Direct Check. However, states may choose to remain in the categorical system.
The legislation creates three local/state programs to enhance educational excellence: Challenge Fund, Teacher Quality Fund, and Academic Opportunity Fund. These programs will result in a substantial increase in federal education assistance--$36.5 billion over five years.
HOW IT WORKS
Those states that opt for the ``Direct Check'' flexibility will receive their educational funding upon the adoption of a state plan written by the governor or the governor's designee that outlines the goals and objectives for the funds--how the state will improve student achievement and teacher quality, and the criteria used to determine and measure achievement.
Decisons on how funds will be used to meet state goals and objectives will be made at the local level.
PROGRAMS
Challenge Fund ($17 billion over five years) to improve education achievement. Direct Check states will receive an additional 10% of their allotment.
Teacher Quality Fund ($14 billion over five years) to improve education achievement. Direct Check states will receive an additional 10%.
Academic Opportunity Fund ($6 billion over 5 years) to reward student achievement, implement statewide reforms, and reward schools and school districts meeting state goals and objectives. Only Direct Check states will be eligible to receive these funds. States may receive an additional 10% of their allotment if they (1) devote 25% or more of their Challenge Fund allotment for Special Education; (2) demonstrate improved education performance among certain disadvantaged populations; or (3) adopt or show improved performance on state-level National Assessment of Education Progress tests (NAEP).
By Mr. GRASSLEY:
S. 1271. A bill improve the drug certification procedures under section 490 of the Foreign Assistance Act of 1961, and for other purposes; to the Committee on Foreign Relations.
MOST FAVORED ROGUE STATES ACT OF 1999
Mr. GRASSLEY. Mr. President, today I am introducing legislation to help clarify for the administration certain aspects of drug policy that seem to have caused confusion. The confusion seems to lie in how to think about our friends and enemies when it comes to drug policy. There seems to be a willingness to overlook the actions and activities of certain rogue states when it comes to their involvement in drug production and trafficking.
The purpose of our international drug policy is to establish a framework for achieving results that sustain the national interest. As part of that, the goal is to identify countries that are major producers or transit zones for drugs. It is also to determine whether those countries are committed to cooperate with the United States, with other countries, or are taking steps on their own to stop illegal drug production and transit. This goal is clearly in the national interest.
Most illegal drugs used in this country are produced overseas and smuggled to this country. In accomplishing this, international drug thugs violate our laws, international laws, and, in most cases, the laws in the source and transit countries. Those drugs kill and maim more Americans every year than have all international terrorists in the last 10 years. In addition, they have made many of our schools, workplaces, our streets and our homes unsafe and dangerous.
There are few threats more direct, more immediate, and more telling in our everyday lives than drug use and the activities of those who push them on our young people. We pay the costs in our hospitals, in our jails, and in our families. It is a devastation that we share with other countries. And the problem overseas is growing worse. Not only is drug production up but so is use. The source and transit countries are now facing growing drug use problems. Thus, in addition to attacks on the underpinnings of decent government from criminal gangs, many countries now face epidemic drug use among young people.
What other countries do or do not do to confront this threat is of interest to
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Congress has over the years repeatedly pushed for an integrated, coherent approach, often over the reluctance of administrations. Dealing with the drug issue is often messy and uncomfortable. It disturbs the pleasantries of diplomatic exchanges. Progress is hard to achieve and difficult to document. And sometimes taking drug policy serious upsets other plans.
This seems to be the case in this administration's dealings with several major drug producing or transit countries. It seems the administration would rather not know what these countries are up to on drugs, lest knowing make it difficult to pursue other goals. In several of these cases, the countries involved are not friends of the United States. One, Iran, is a sworn enemy. It has used terrorism and other tactics to attack U.S. interests and to kill Americans. it is also a drug producing and transit country.
For many years, the lack of cooperation or reliable information of Iranian counter drug efforts placed them squarely on the list of countries decertified by the United States. Last year, however, the administration removed Iran from the list. it did so on feeble pretexts, with limited information, and in a less than forthright manner. The administration used lawyerly interpretation of statute to drop Iran from the so-called Majors' List. Doing this meant the administration could then duck the question of whether to certify Iran as cooperating on drugs or not.
To accomplish this little sleight of hand, the administration had to ignore the interconnectedness of drug trafficking, congressional intent, and the national interest. So far as I can determine, it did this in the vague hope that a unilateral gesture towards Iran on drugs would see a reciprocal gesture leading to detente. It is hard to account for the change otherwise. And even so it is hard to comprehend. Never mind Iran's continuing hostility, its past and current support of terrorism aimed at the U.S. and American citizens. Never mind the facts. Never mind drug production and transit. Never mind the national interest. This is another case of the triumph of hope over experience that seems to be the lodestar of this Administration's foreign policy.
What makes the case even more disturbing is the apparent subterfuge the administration resorted to in order to evade explaining this major shift in policy. I say major because Iran had been on every drug list since its inception and Iran has been decertified for that whole history. I say subterfuge because of the pettifoggery the administration resorted to.
Given the facts of Iran's past, what is reasonable to assume would be a responsible way of dealing with the issue? It is the clear intent of the law on these matters that the administration would consult with Congress before making a major change in policy. But what did it, in fact, do? Not only did the administration not consult, it nitpicked. The law requires the administration to submit the Majors List by November 1. Instead of complying with this known statutory requirement, the administration delayed by over a week the submission of the list, conveniently waiting until after Congress had adjourned. Mere coincidence? Well, the administration did precisely the same stalling routine the year before when Syria was similarly spirited off the list. Without any prior notice to Congress. Once is accidental, twice is beginning to look like a pattern.
Weeks after this move, the administration finally provided an explanation. It deserves a full retelling to appreciate. First, some basic facts. Iran has a long history of drug production, most opium. It is a major transit country for opium and heroin from Afghanistan and Pakistan. Major Iranian criminal gangs have been involved in the drug trade for years.
Since the Iranian revolution, it has been difficult for any outsiders to determine what, if anything, the Islamic Government is doing to stop this trade. It is also important to understand that Iran was on the Majors List as a producing country. The law requires that any country that grows more than 1,000 hectares of opium poppy be put on the list. Iran met this qualification. The standard for classifying a transit country is not so precise and it is this imprecision that the administration exploited.
Here, in brief, is the administration's explanation for dropping Iran from the list: Iran no longer grows more than 1,000 hectares, and the transited heroin does not come to the United States, so it does not qualify for the list.
This latter rationalization is based on the administration's own favored way of reading the law. In this reading, a major transit country does not qualify for the list if current intelligence information does not show a direct flow to the United States. Since the underground nature and fungibility of the international drug trade is hard to quantify precisely, this leaves a lot of room for interpreting the facts to reach a politically correct conclusion. This, of course, leaves aside the question of whether such an exception was ever part of congressional intent or is consistent with the law or the national interest. The reasoning is shaky on both policy and information. It also ignores the nature of international drug trade and criminal organizations and what must be done to get at them. And it relies on how little we know about what goes on inside Iran.
In reality, the administration's approach is a resort to technicalities and convenient interpretations to dodge the real issues. But as we have been instructed, it all depends upon what the meaning of ``is'' is. But let's remind ourselves that what is being done here is to base a weighty policy decision involving serious issues of national security and well being on lawyerly gamesmanship. And this on the unanchored hope that the gesture, and that's all it is, might get a friendly reaction in Iran. What did Iran actually do in response? What you would expect. It thumbed its nose in our direction. But let me illustrate a little further the way facts have been employed.
Recall that Iran used to be on the Majors List for producing over 1,000 hectares of opium. Drop below this number, in the administration's reasoning, and you automatically fall off the list. In this very careful parsing of meaning, I would suppose that if a country produced 999 hectares, no matter what other facts applied, it wouldn't qualify. But is this the case in Iran? The administration's explanation is that they could not find opium production in Iran in 1998, ergo, they do not qualify on this criteria. But this so-called objective assessment needs a little closer look.
In most cases, we base our estimates of illicit crop production on overhead imagery and photo interpretation. While we are pretty good at it, this is not a precise science, whether we're talking vegetables or missiles. And it is, by the way, even more difficult when it comes to counting vegetables. Good analysis is dependent of weather, adequate overhead coverage, information from corroborating sources, and a track record of surveying that builds up a reliable picture over time. What was the case in Iran? Before the so-called objective, imagery-based assessment in 1998, the last overhead coverage of Iran had been in the early 1990s.
The 1998 decision was therefore based on a one-time shot after years of no informaiton. Corroborating information is also scant. But the situation is even more dubious.
Based on the past estimates, Iran cultivated nearly 4,000 hectares of opium in various growing regions across the country. The 1998 survey concentrated in only one of those traditional growing areas. Although in the early 1990s it was the major one, it still only accounted for some 80 percent of total cultivation. The 1998 survey could find no significant growing areas in these areas. But if we are to believe Iranian authorities, they have specifically attacked this cultivation with vigorous eradication efforts. The imagery would seem to support this claim. But we also know that growers
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We cannot, of course, prove a negative, but that should not lead us to jump to conclusions, especially when those conclusions are what we want. Let me illustrate the point. If 20 percent of Iranian opium production--a number based on earlier assessments--was in areas other than those checked, that figure alone gives us close to 800 hectares. Since those other areas--which cover an immense amount of countryside--were not checked, we cannot know if there was any production for sure. But, it would only require a little effort on the part of growers to shift a small amount of production to get us to our 1,000 hectare threshold. Also remember that opium is an annual plant. In some areas it has more than one growing season. Thus, a region that only had 500 hectares of opium at any one time but had two growing seasons, would have an actual total of 1,000 productive hectares per year. I do not know that this was the case in Iran, but neither does the administration. It doesn't know because it didn't look. It didn't look because it was not convenient.
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