Andrew Cochran of the 7th Amendment Advocate (who is also a representative of the organized trial bar), reports that the House is likely to vote on a Republican bill restricting state medical malpractice lawsuits next week. He cites several conservative and libertarian legal commentators who oppose federal tort reform on constitutional grounds, including myself and co-blogger Randy Barnett. It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans’ support for federal tort reform calls into question the genuineness of the GOP’s commitment to respecting constitutional limits on federal power.
I do have some minor quibbles with Cochran’s post. The title of his post is “Even Anti-Trial Lawyer Legal Experts Oppose H.R. 5,” and he seems to include me among the “anti-trial lawyer legal experts.” However, I don’t think of myself as particularly “anti-trial lawyer.” The organized trial bar lobbies for various policies that I think are wrong. But much of their agenda involves issues that I don’t have any strong views on. Overall, I think trial lawyers serve a useful function in the legal system.
Cochran also describes me as “a noted Tea Party-side and anti-Obamacare scholar.” I am flattered to be considered a “noted” scholar. But, while I agree with the Tea Partiers on many federalism issues, my only connection to the movement (if it can be called that) is that I published an academic article about it last year.
That said, Cochran and I do agree about the federalism issues raised by H.R. 5. Skeptics will say that the trial bar is insincere in their devotion to federalism here, and are primarily driven by their economic self-interest. Neither the trial lawyers nor their GOP opponents are models of intellectual consistency on these issues, and political expediency is probably an important factor influencing both sides. But the validity of a position does not depend on people’s motives for adopting it.