New York Personal Injury Law Blog » Seventh Amendment, tort reform


October 12th, 2011

The Conservative Attempt to Federalize Tort “Reform”

As many of you know, there is a congressional “Super Committee” set up to look for ways to better balance our budget via expenditure cutbacks and/or revenue increases. And among the ideas floated by certain conservatives, is to sneak medical malpractice “reform” into the package.

I’ve railed many times against the abject hypocrisy of conservatives seeking to enlarge federal power by giving protections and immunities to those that injure others by negligence. Without me repeating myself, these are a a few, then I’ll get to the link I really want to send you to:

The New Congress and the Constitution (Will they really defend it?) (January 6, 2011)

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) (May 3, 2010)

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ) (June 30, 2009)

Today it is someone else’s turn to hold the torch, that being Andrew Cochran, founder of The 7th Amendment Advocate, a website dedicated to educating the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits.

And he writes today on the many conservative voices in academia that have risen up to oppose as unconstitutional the attempt to use federal power to limit the rights of the citizenry in state court claims: Letter to “Super Committee” Opposing Federal Tort Reform Proposals

Among those conservatives that have spoken out against the hypocritical usurpation of state rights are:

Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Tom Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country

Cochran today sends a 10-page letter to the Super Committee members, dwelling mainly on this issue: That conservatives cannot scream that President Obama’s health care law is unconstitutional as a federal power grab while at the same time asking to give the federal government more power.

The letter, filled with essential links and quotes, is here: Letter to “Super Committee” Opposing Federal Tort Reform Proposals.

5 thoughts on “The Conservative Attempt to Federalize Tort “Reform”

  1. I quite agree – get the Feds out of as much as possible; however, I doubt that the Federal Bureaucracy can be unravelled at this point so I understand the efforts to slant it instead

    It strikes me that the purpose of the jury system was to protect the rights of the defendant, so the right to waive a jury trial should belong to the defendant, in both criminal and civil matters

    • It strikes me that the purpose of the jury system was to protect the rights of the defendant…

      Certainly that is the case for criminal trials and the 6th Amendment, but not civil trials. The 7th Amendment says:

      In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

      It is worth noting that the issue of jury trials (and the concept of keeping power with the people and out of the hands of the government) is in both the Declaration of Independence as well as the Bill of Rights.

  2. Tort Reform is a legal weapon used in Texas against Texans ever since Governor Rick Perry signed the 2003 Tort Reform Act. When there are laws on the books preventing the common man from getting accountability, no telling what will happen.

    Providing a link showing the collateral damage left behind Tort Reform.

    If link is not accessible, Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 – April 26 2008.

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