William Jacobson raises some very pertinent questions about federal-level tort reform:
If we are against the federal government forcing us to purchase health insurance, shouldn't we also be against the federal government telling us which state common law remedies we can pursue and on what terms? Isn't this a matter for the states? ...
I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product. Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far.
On the other hand, regulating the tort system is not quite the same thing as regulating the health system, although there is a relationship between the two.
Bottom line. The mandate must go. There is no reason to give up on the clear-cut issue just because other issues are less clear.
Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I'd be inclined to leave it to the states. If you don't like your state's tort system, do the same thing you would do if you didn't like its tax or other systems: Move.
I'm generally in favor of federalism, so I'm inclined to agree with Jacobson's bottom line, but I think the issues are very different. My concerns with the mandate boil down to the federal Leviathan versus the individual (i.e., the broccoli problem). My concerns with tort reform boil down to federal versus state issues. The case for tort reform even under a rather narrow interpretation of the Commerce Clause strikes me as being far stronger than that for the mandate.
For an argument that federal-level tort reform is constitutionally problematic, see Can Tort Reform and Federalism Coexist? by Michael I. Krauss and Robert A. Lev:
We begin with the Commerce Clause but find that interstate trade does not, by itself, justify federalizing tort law. On the basis of examples involving fast food, guns, and medical malpractice, we argue that substantive federal reforms are neither necessary nor proper. If states persist in imposing unjust rules on out-of-state defendants, federal procedural remedies are available. ...
...
Some reforms can be implemented at the state level—including solutions to excessive punitive awards, curbs on joint and several liability, payment of attorneys' fees when government is the losing party in a civil lawsuit, the prohibition of contingency fee contracts between government and private lawyers, and restraints on litigation by government to recover expenditures made on behalf of private parties.
At the federal level, we endorse two procedural reforms. The first involves state "long-arm" jurisdiction, which determines whether an out-of-state entity can be sued in a local court. Currently, out-of- state businesses find it exceedingly difficult to avoid oppressive state tort laws. A second federal reform concerns "choice-of-law" rules that determine which state's laws control a multistate suit. A federal choice-of-law rule would prevent states from exporting discriminatory tort regimes.
On the other hand, my friend and UCLAW colleague Eugene Volokh argues that:
I think there’s ample justification for conservative calls to limit product liability, since this would generally involve Congress changing the regulatory scheme for interstate commerce to make it less restrictive and more predictable. There is less justification for conservative calls to limit medical malpractice liability, but there is still some, given that medical care does have important interstate dimensions. I agree — as one who does value state autonomy quite a bit — that it would be good if all these preemptive schemes were crafted to minimize the effect on purely intrastate commercial transactions. But the big picture project of restricting the regulation of interstate commerce imposed by the tort liability system strikes me as quite proper for federalist conservatives.
Go read his whole post. It's a good read.
