In a thread about tort reform, I started off a comment to Mr Devine with what I thought was an innocuous preamble:  ”I am not being a wiseguy but please tell me where I misapprehend the implications of federal tort reform.”  I was trying to show respect for Mr Devine’s experience and, knowing I’ve written about this subject several times, wanted to deflect from the appearance of my being a one-trick pony.

But I guess I am a one-trick pony. My one trick is this: curtail expansion of central power through the interstate commerce clause.  Nobody challenges federal legislation anymore because making a frontal assault on federal power interstate through the interstate commerce clause is futile.  All central power comes through the commerce clause.

I challenge anyone to give me any action or subject. I can connect it with interstate commerce in the maximum of two hops.

In any case, it disturbs me to see people on the conservative side of the aisle are clamoring for federal tort reform.  If you are for states’ rights and respect for the Tenth Amendment, how can you possible want federal tort reform?  Do you just want states’ rights for the stuff you favor and not for the stuff you don’t like? Begging for federal tort reform is suicidal.  You are begging the federal government to preempt a substantial portion of hundreds of years of state law.

If a federal tort reform act is passed, it can only be done so based on the interstate commerce clause.  Under Article VI, all federal laws passed pursuant to the constitution preempt “conflicting” state laws and state constitutions.

Here are the implications of a constitutional federal tort reform act.  If the federal act preempts conflicting state laws and constitutions, which it does by Article VI, the federal government has always had that power and the states have never had it.  The fact that the states have been regulating tort law up until the time of the federal tort reform act was due to the forbearance of the federal legislature.  Again, if the federal Congress has the constitutional authority to pass a federal tort reform act today, they had the authority to do it in 1789.

According to the theory underlying the Tenth Amendment, the people had all the power. Some of it they delegated to the federal government through the federal constitution, some of it they delegated to the state government through the state constitution, and some of it they kept to themselves. Since there was no constitutional amendment granting the federal legislature the authority to regulate tort law, it must exist in one of the existing grants of power, namely, the commerce clause.

In trying to explain a newly found or exercised federal power, federal courts rely on the Clear Statement Doctrine: ”The Supreme Court has long required that if Congress intends to alter [the usual constitutional balance between the States and the Federal Government,] it must make an unmistakably clear statement of its intention to do so in the language of the statute.”  Notable about the clear statement doctrine is the presumption or assumption that the federal congress has the authority. It is only their intention to preempt state law is in question.  In other words, the fact that tort cases have always been judged by state law precedent is not a rebuttal to the federal congress clearly and unequivocally expressing its intention to “alter the constitutional balance.”  The main point — that the federal congress has the power under the interstate commerce clause — has already been conceded. Again, the only condition for preemption of state laws and constitutions under Article VI, is that the federal law was made pursuant to the constitution. Game over.

Some argue that we only want to regulate medical malpractice cases. A medical malpractice is negligence case.  The only difference between a medical malpractice case is the standard applied to the defendant. In the case of a car accident the standard to be applied is whether the defendant acted as a reasonable driver or person; in the case of medical malpractice, a reasonable doctor; in the case of architectural malpractice, a reasonable architect, and so on.  So when you concede the federal government has power to regulate malpractice cases, you are saying it has power to regulate car accident and dog bite cases. You have conceded that the federal government has the power under the commerce clause to preempt all state tort law and state constitutions. Game over.

Others argue that we should put caps on damages.  This is the most ghoulish suggestion I’ve ever heard.  Assume you have a case where the doctor has accidentally amputated both of a person’s perfectly good legs.  Let’s say there is universal and unanimous agreement that the damages are 1,000,000.  Now let’s say there is damage cap of 300,000. Someone is ahead by 700,000.  There is only the doctor, the doctor’s insurance carrier, and the general public.  If the general public is ultimately benefited by the reduction of medical malpractice premiums and a consequent reduction of medical costs, this one person has borne the expense of your benefit.  How’s that for a transfer of wealth?

The ultimate folly of federal tort reform is that you are conceding the one and only point – the federal government has power to preempt state tort law.  While this federal tort reform may be beneficial today, what happens when they lobby and adopt a non-beneficial tort reform in the future? You are out of arguments against it. Suckers.

Finally, I too am an attorney, basically a real estate attorney.  That I am an attorney is a distinct disadvantage when discussing tort reform.  There are always hints and implications that one is opposed to tort reform because one is getting rich off of it. I wish I could justify that.