It's an interesting question. I have a couple thoughts.

First, as was the case in the Same-sex marriage amendment following the Goodridge decision, conservatives argued that federal regulation was required in order to prevent one state court from bullying all the other states into adopting same-sex marriage. Similarly when one state's court allows huge punitive damage awards, multi-state corporations' activities in other states are collaterally regulated. This was a big issue in State Farm v. Campbell. So, I guess, the idea is that either way federalism is going to be impaired, and a little regulation will help a larger encroachment.

Second, I would agree with your second point, that this seems like the kind of problem that the commerce clause was originally meant to remedy. Most conservatives (at least those I know) admit that there are race-to-the-bottom problems and interest in uniformity that warrant federal regulation, and this seems like one that is worthy of regulation.

I have a lot of thoughts on this that I will post later. But my intial, snarky comment: Isn't it irnoic that state courts are good enough to reneder CRIMINAL judgments that will determine whether a person will go to PRISON. But state courts are not good enough to award money damages or award punitive damages? Thus, we need the AEDPA (and, before that, McCleksy) to keep ACTIVIST federal judges from disturbing final state court judgments. But when it comes to big business, we need federal courts to protect poor multi-billion dollar buisnesses from the horrors of state court.

The state courts, IOW, are good enough for a poor person whose life or liberty is literally at issue. But a state court is not good enough for a business that can afford to retain Williams &Connolly or Gibson Dunn.

My impression is that they favor tort reform because it will hurt Democrats, as trial lawyers tend to donate to the Democratic Party.

Tex wrote: "But a California court should not be in the position to prevent a New England firearms manufacturer from delivering its products to a licensed dealer in Texas."

Instead, Congress should (using a scapel, I'm sure) be able to determine whether any person, in any of the 50 states, should get a firearm? Let's not forget that Janet Reno was AG just a few years ago before we start praising federal power.

Publius wrote: "C&F, I think you're comparing apples w/ oranges. How do state criminal judgments affect interstate commerce?"

The same way Angel Raich's homegrown marijuana does. ;^> Anyhow, I'd need to hear the IC argument developed more fully before I could reply. My initial point was that most tort reformers think lowly of state courts. A3G's tongu-in-cheeck characterization is not far off.

Anyhow, I'll anticipate your "we can't have 50 sets of regulations in our national economic union" argument by asking: Assuming Congress enacts comprehensive products liability regulations; Would you then trust state courts to apply this federal law? Let's remember that the proposals now are to MOVE cases from state to federal court. The arugement is not the need for Congressional substantive law (outside of med-mal and asbestos), it's one of transferring JURISDICTION from "icky" state courts (and "runaway" state juries) to federal courts. That tells me that the tort reformers don't think highly of state courts - at least when MONEY is involved.

C&F: "The arugement is not the need for Congressional substantive law (outside of med-mal and asbestos), it's one of transferring JURISDICTION from "icky" state courts (and "runaway" state juries) to federal courts"

Publius: That's fair, and I, as a fellow federalist, share your pain. I'm not advocating granting some form of protective jurisdiction, but would be more in favor of federal substantive law. Maybe a legislative version of the due process punitive damages jurisprudence.

My point with the criticism was only that whereas I can't see any way that congress even has the power under Article I to control state criminal law, at least there's a constitutional argument for federal punitive damages regulation. Whether or not it's prudent is, of course, a different question. :)

I consider myself a strong federalist. As such, I would argue legal reform is largely a local and state issue. I see three types of cases, and see the Federal government as having a different role in each.

1) Cases that are wholly local; medical malpractice would be the best example. These should continue to be solely a state and local concern.
2) Cases that could affect interstate commerce, but are specifically local. An example would be the State Farm case. These cases should remain state cases, but a federal law enabling effective federalism would be very beneficial. Such a law would enable the seller of a product to specify a jurisdiction in which all claims must be brought, but leave jurisdictions free to set their own rules. However, jurisdictions with “bad rules” would be avoidable.
3) Cases that are not in any reasonable sense local, such as class actions with multi-state classes. I think these should be heard in federal court, unless all parties agree on a state jurisdiction.

Protecting businesses or the people? The test will play-out in congress. One thing is politically certain: the executive branch has the congressional majority (two fold) on his side. But regarding the conservative aspect to the posed question, it’s worth bearing in mind that the conservative card is playing multiple faces: there are fiscal conservatives and moral conservatives, and these two need not coincide. If Republican congressional members depend on the moral conservative card, depending in terms of the constituency they represent, then chances are that Tort Reform, if and when presented, will meet resistance, for such members of congress would be better-off by siding with the people, as opposed to the businesses. I’m willing to bet that there have been quite a number of Registered Republicans who have filled suits through various causes of actions. Chances are that members of the conservative caucus have reaped benefits from the present state of Tort law. If any conservative movement does arise toward Tort Reform, probability dictates that the majority comprising such a force would primarily consist of those wedded to special interest and deep pockets. This proposal can’t get any more obvious. Some fat cats just can’t wait for the ball to roll.

In the first place, don't forget that federalism first got fat and pink on a diet of tariffs and a national bank. What makes national tort reform so antithetical to federalism?

In the second place, to the extent that conservatism espouses a government limited to protecting peace and property, calls for tort reform do not seem necessarily to be hypocritical. This would be especially true if these reforms are perceived as a way to solve a problem of free-riders.

When it comes to tort reform, however, many conservatives sing a different tune: suddenly they switch to talking about the dangers of state regulation and the need for federal protection of businesses.


I think of this in just the opposite way. In my view, tort reform *is* a way of limiting government. It restricts the state's overly intrusive powers to asses limitless damages in civil disputes.

Conservatives are often hypocritical about federalism -- witness the somewhat implausible federalist arguments for the Federal Marriage Amendment -- but I don't think this is a case of such hypocrisy.

In this case, the interstate commerce justification is pretty strong, especially in light of the rampant venue-shopping that goes on in tort cases (e.g. pharmaceutical product liability cases in plaintiff-friendly Mississippi). In criminal law, this is much less common. If a murder occurs in Massachusetts, it's pretty unlikely that a prosecutor will be able to venue-shop the case into, say, Texas. On the other hand, this happens all the time in tort cases.