To those who habitually cite the 10th Amendment to complain about federal forays into state matters, make up your minds. You whine about federal intrusions but beg for the more when you ask for federal tort (malpractice) reform.
Unless you live in a federal enclave or territory, tort law is state law and nothing but state law. And even if you are in federal court because of diversity of citizenship, the federal court uses state tort law. And if you are in federal court because of a federal question and you join state tort claims, the federal court uses state tort law for the state tort claims. Federal courts are bound to follow state court decisions.
Demanding federal tort reform is demanding the federal government take over state tort (malpractice) law. It is demanding that the federal government preempt hundreds of years of state case law. And it is demanding the federal government take over one-third of the state government.
Given the interpretation of the commerce clause, I do not doubt that federal tort (malpractice) reform would be upheld as a proper exercise of federal power. Then you can go back to complaining about the federal government ignoring the 10th Amendment.
Moe Lane
PG DeFreese
Victoria Coates
Daniel Horowitz
Dan Spencer
You make a good point but, we can have it both ways
Mike gamecock DeVine (Diary) Saturday, July 11th at 11:37AM EST (link)Some matters necessarily require federal uniformity/regulation. Interstate commerce is one, and I think that given the critical element of insurance in many areas, that it should be de-regulated across state lines and that federal tort reform should follow.
The 10th is best utilized for social issues today I think and on all matters not addressed by the feds so that the COURTS should not go beyond what Congress legitimately does under their enumerated powers.
Mike DeVine’s Examiner.com, Charlotte Observer and The Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson
Exactly...
casel21 (Diary) Saturday, July 11th at 12:18PM EST (link)if everything is interstate commerce (which it is) then everything can be federally regulated. If everything can be federally regulated, what power was reserved to the states or the people?
The civil rights act was passed under the interstate commerce clause. A backwoods restaurant was subject to it because it bought its ingredients from interstate commerce. In Lopez, the majority challenged the dissent to name an area of law outside the reach of interstate commerce. They couldn’t.
One can make a connection between any social issue and interstate commerce. The point I was trying to make was that if the federal government took away the power of state courts to make law and interpret their own constitutions, what is left of the state?
I almost never use words like "everything" - and certainly many court precedents
Mike gamecock DeVine (Diary) Saturday, July 11th at 6:29PM EST (link)defining any activity that even tangentially “effects” interstate commerce, you are almost correct, but still the word everything goes too far. Moreover, the Roberts court has issued a recent decision on med marijuana I think that cut back on some of Wickard.
I could name a lot of things the states still control, but in general I agree with you.
One thing they still can do is expand civil liberties in many areas.
more later
Mike DeVine’s Examiner.com, Charlotte Observer and The Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson
That doesn't make sense
Menlo (Diary) Sunday, August 16th at 3:33PM EST (link)Why aren’t civil rights laws weren’t authorized under the fourteenth amendment where they make perfect sense? Instead they are authorized under interstate commerce where they make far, far less any way one looks at it?
The fourteenth amendment authorizes Congress to enforce its provisions, and I see that as quite a broad power even more than interstate commerce. There is a lot that comes under “equal protection,” including any so-called “social” issues.
“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” -Felix Frankfurter
What needs reform more is the court-shopping
civil truth (Diary) Saturday, July 11th at 1:50PM EST (link)We’ve seen a corrupt network of certain states alligning themselves with trial lawyers to allow cases that have not connection with their state to be brought into their jurisdiction, where the judges and juries habitually come up with large verdicts.
What needs to be done, then, is to keep the case in the locale where the injury occurred and prevent the strained arguments that allow consolidation into corrupt locales.
The greatest evil…is conceived and ordered (moved, seconded, carried, and minuted) in clean, carpeted, warmed, and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice. Hence, naturally enough, my symbol for Hell is something like the bureaucracy of a police state or the offices of a thoroughly nasty business concern. -C.S. Lewis
http://www.gmsplace.com/
agreed CV - nt
Mike gamecock DeVine (Diary) Sunday, August 16th at 2:57PM EST (link)Mike DeVine’s Examiner.com, Charlotte Observer and The Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson
Oddly, Juries In Conservative Areas GiveThe Highest Awards
Swamp_Yankee (Diary) Sunday, August 16th at 3:05PM EST (link)The deep South and Southern Illinois are two areas that come to mind that ambulance chasers love to move their cases.
Generally agree, but there is wide disparity within Dixie and even w/i particular southern states - nt
Mike gamecock DeVine (Diary) Sunday, August 16th at 3:17PM EST (link)Mike DeVine’s Examiner.com, Charlotte Observer and The Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson