What Kind Of Conservative Believes In Tort Reform?

constitution.jpgLaw professor William Jacobson senses a tension, bordering on self-contradiction, in two ideas favored by conservatives: the repeal of the Affordable Care Act (what is often styled as “Obamacare”) and support for tort reform measures, such as H.R. 5, a bill that I’ve previously blogged about, that would cap, by federal law, the damages that can be awarded in medical malpractice lawsuits filed in state court and litigated under state medical malpractice laws. (H/t Volokh Conspiracy).
Wherein lies the contradiction? Well, conservatives are normally backers of states rights. They like to trumpet the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, they oppose the Affordable Care Act on the grounds that it exceeds the federal government’s powers to enact an individual health care mandate. They would have no constitutional objection to a state government enacting an identical mandate, but they believe that, under the Constitution, an individual mandate exceeds the federal government’s limited powers.
Lo and behold, when it comes to tort reform, conservatives’ qualms about the federal government’s powers vanish. There they favor the federal government intruding upon the administration of state medical malpractice law in state courts. Carrying the torch of tort reform, these same conservatives favor the imposition of a federal law capping pain-and-suffering damages in medical malpractice cases at a quarter of a million dollars.
They believe that Congress has the authority to pass such a law pursuant to its Commerce Clause powers; the same powers that they also say are not substantial enough to undergird the Affordable Care Act.
For consistency’s sake, congressional Republicans should jettison either their opposition to the Affordable Care Act or their support for capping damages in medical malpractice cases.

This blog in maintained by the Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. It does not offer legal advice, nor should you construe it as offering legal advice on a medical malpractice claim that you should have.