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Federalism and Tort Reform:
On the Greedy Clerks board, AWC raises an interesting question: are conservatives hypocritical for favoring federal tort reform? After all, conservatives are usually in favor of limited federal goverment. 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. Are these conservatives just a bunch of hypocritical fair-weather federalists who want to protect businesses but not people? Or are pro-plaintiff state courts effectively creating inconsistent state regulatory schemes — exactly the kind of problem that the Commerce Clause power was designed to address?

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Related Posts (on one page):

  1. Tort Reform and Federalism:
  2. Federalism and Tort Reform:
jason p:
To the extent that conservatives actually favor a limited federal government, I would vote for not hypocritical. But my opinion is that (some?, most?) conservatives don't favor limited government as a true principle, it only happens to be an effective means of getting what conservatives really want. Just like not many conservatives stood up to defend Raich in the medical marijuana case. When forced to choose between a policy goal and a principle, the policy goal wins out. Of course, this is only some conservatives, the ones that stood up for Raich and her cause (thank you Randy Barnett!) deserve much praise and are clearly not hypocritical.
How this plays out in the tort reform arena may be slightly different, but undoubtedly there will be some conservatives that look first to what the business interests are, and only later will they consider how the principle of favoring a limited federal government affects the issue.
12.16.2004 8:14pm
Publius (mail) (www):
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.
12.16.2004 8:15pm
Tex the Pontificator (mail) (www):
The tort system can pose a threat to interstate commerce when, as some gun control advocates have openly attempted, it is used as a tool to regulate an industry in interstate commerce. For example, assume a California court bankrupted firearm manufacturers in other states by means of a judgment based on a negligent marketing theory.

I do not claim to have thought through all possible scenarios, and maybe some tort reform issues do not impact interstate commerce. But it seems clear to me that some do. Whether a Massachusetts firearms manufacturer can deliver its products to a Texas firearms dealer should not be decided by a California court.
12.16.2004 9:38pm
Crime & Federalism (mail) (www):
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.
12.16.2004 9:41pm
Tex the Pontificator (mail) (www):
The tort system can adversely affect interstate commerce. For example, some gun control advocates have openly discussed using the tort system as a back door for achieving firearms regulation. What if a California court were to bankrupt firearms manufacturers in other states based on a negligent marketing theory?

I have not thought through all possible scenarios, and probably some problems with the tort system do not have interstate commerce implications. 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.
12.16.2004 9:45pm
fling93 (www):
My impression is that they favor tort reform because it will hurt Democrats, as trial lawyers tend to donate to the Democratic Party.
12.16.2004 10:01pm
Publius (mail) (www):
C&F, I think you're comparing apples w/ oranges. How do state criminal judgments affect interstate commerce?
12.16.2004 10:10pm
Crime & Federalism (mail) (www):
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.
12.16.2004 10:40pm
Me2d (mail):
One thing I've noticed as a liberal is that I have found federalist arguments more appealing now that the Republicans are in power and I assume that the Republicans find the use of the interstate commerce power more appealing now that they control two branches of government. I wonder if the distinction about federalism should be cast not as a debate between conservatives and liberals (for example, couldn't you say that liberals are being equally as hypocritical about the need for federalism in gay marriage as conservatives about tort reform) but as one about majority and minority rights.
12.16.2004 10:52pm
Publius (mail) (www):
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. :)
12.16.2004 11:01pm
SamChevre:
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.
12.17.2004 12:09am
SamChevre:
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.
12.17.2004 12:10am
cw (mail):
It's all about traditional party support. Republicans are pro-business. Their support comes from business. Business is hurt by consumer lawsuits. Democrats traditionally get support from "the little guy" and their lawyers. So obviously they are in conflict.

More interesting to me is the idea that we even need tort reform. With the exception of maybe meidcal liability, our legal system is working just like it should. Companies wary of being sued take extrodinary steps to insure their products and facilities are safe, and their practices are fair. I think that is a good thing.

And beyond that the vast number of lawsuits lose, or at best win very very little. We don;t hear about the guy that get's $200o. We only hear about the tiny minority of suits that result in huge awards.

And finally, what other system is in place to police corporations? CEO almost never face criminal prosecution, maybe becasue it's very hard to prove a case. So how else are unethical companies going to be held to account? And further, you need massive awards to deter corporations with massive income. Is GE going to sweat having to pay someone a couple hundred thousand dollars? That's just a cost of doing business. If you are going to deter someone (or something), the consequences have to be painful.

cw

p.s. This comment form process stinks.
12.17.2004 12:19am
Fernando:
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.
12.17.2004 2:39am
np (mail) (www):
I think the basic problem is that the "federalism" of many conservatives has been polluted by compromise with the New Deal regulatory state. At the time of the framing it would have been thought an unbearable imposition on the states to have to abide by federal standards in their state civil courts-- what is left of state sovereignty if a state is unable to promulgate civil regulations to be enforced by its own courts? It was controversial enough that state courts could not decide all federal questions.

So when people who consider themselves "federalists" or even "strong federalists" call for limiting state jurisdiction on the grounds of commerce (an absurd argument, because a state court proceeding is in no sense commerce), or limiting state control over class action lawsuits, it is just appalling. What happened to strict construction?
12.17.2004 2:59am
Son of Publius:
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.
12.17.2004 8:41am
SamChevre:
np,

I see both of my proposals as explicitly supported by the text of the Constitution.

1) Explicitly and enforceably providing that jurisdiction can be subject to contract would seem to come comfortably under I.10.1 ("No state shall...pass...any Law impairing the Obligation of Contracts").
2) National Class actions (as well as suits against businesses domiciled in another state, whether by citizens or State Attorneys-General) would come comfortably under the authority of Federal courts under III.2.1 ("The judicial power shall extend...to controversies...between a State and Citizens of another State; between citizens of different States....")
12.17.2004 9:19am
TH:
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.
12.17.2004 9:45am
Gil Milbauer (mail) (www):
Looks like Rober Levy has a piece on this at the Cato site today: link

http://www.cato.org/dailys/12-17-04.html
12.17.2004 5:43pm
Kieran Jadiker-Smith:
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.
12.18.2004 1:29am