Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:
I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.
I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.
Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.
But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.
Lane knows that his argument is wrong, because it was refuted in the comments of the original post:
We already effectively have legal malpractice (and business malpractice) cases decided by judges in the vast majority of instances. If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice. The real question is why other professionals don’t get the same benefit of the doubt that attorneys do.
We have professionals, rather than lay juries, that decide social security disability and worker’s compensation and black lung fund and immigration cases. The jury system is not universal, even in America, and it (like the Constitution) is a means to an end, rather than an end in and of itself.
Lane went ahead and attacked me anyway without acknowledging or addressing those refutations. What are we to conclude about the honesty of Lane and the Drum Major Institute’s weblog?