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Torts and Distinctions



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Via Instapundit, I came across this post, titled “Why Federal ‘Tort Reform’ Is an Unconservative Idea.” Federal tort reform is “unconservative,” supposedly, for two reasons: 1) because high fees for plaintiffs’ lawyers are the price of having such a wonderful legal system and 2) because federal tort reform violates federalist principles that conservatives “should hold dear.” It’s not as though nobody has addressed either of these points before (PointofLaw.com, anyone?).

The post never really even tries to apply a federalist analysis to different kinds of tort reform. “[I]f State A’s tort system is too unfriendly to business, then State B might have an incentive to develop amore business-friendly law.” Well, sure: it might. It might have that incentive, for example, when it comes to medical malpractice laws. In many cases, however, a business-unfriendly state product-liability system is going to have effects outside the state. That state may set a de facto national standard. There may, then, be occasions where a federal law is necessary to keep states from interfering with national commerce. Some federal tort reforms might be unnecessary–I’m against Bush’s medical-malpractice reform on federalist grounds. But there are good reasons to support federal tort reform in other areas. The Cato Institute and The Federalism Project are among the groups that have done careful work in this area.



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