Saturday, July 27, 2002

The President's proposal for med-mal caps A couple of days ago I was pontificating about the President's proposal to cap non-economic damages in medical malpractice cases. Now this further thought occurs to me -- like all good law-thoughts, it begins with a hypothetical to focus the mind.

Imagine it's 2000. The Congress (believe it or not) has passed, and President Clinton has signed, a law -- under the authority of the Commerce Clause, with vigorous findings to the effect that insufficiently-careful physicians cause many injuries which put a drain on America's productivity -- declaring that, in every state-law malpractice case in which the jury finds for the plaintiff, the judgment must include AT LEAST $250,000 in non-economic damages.

How long would it take the Federalist Society grownups to convince the U.S. Supreme Court that this was was (a) beyond the authority conferred by the Commerce Clause; (b) a violation of the 10th Amendment; (c) whatever else necessary, including that it violated the 7th Amendment as to cases tried in federal court? I think it's fair to say that the answer is "about five seconds."

So how can the result be different as to the President's mirror-image proposal? Even though I don't personally love medical malpractice litigation, this bothers me.

UPDATE: Sasha, of the Volokh crew, says (sorry, I don't know how to link to the specific entry yet!) that consistency among conservatives as a bloc isn't required, and its absence shouldn't bother me. He's right on this. What does bother me is the hunch that even many of the erudite legal minds of the right -- like many of the erudit legal minds of what passes for the left these days -- aren't even internally consistent, each within his or her own mind, on important principles. (I also think that the President, having sworn to uphold the Constitution too, owes it to us to have a pretty-well-thought-out view on what the constitution allows and what it prohibits; maybe our current President does have this, but if so it differs dramatically from my view in various ways ... but I digress). And I think that every lawyer -- at least when thinking and speaking on his or her own behalf, not representing a client -- has the obligation to be a #2 in Sasha's well-stated taxonomy, i.e., one of those people who will not advocate the adoption or enforcement of a law that he or she believes to be unconstitutional. So, for instance, if I'm right about how S.G. Olson would have come out on my Clinton hypothetical, if lecturing to the Fed Soc, then I hope that he's writing a memo to the President right now urging him to abandon this med-mal proposal.

And because it's always easier to take potshots at the other side's inconsistencies than to offer a consistent position of one's own, here's a stab at mine. I take it as given -- under the mainstream of current law -- that the federal government COULD, under the commerce clause, preempt the whole field of medical malpractice with a uniform federal statute. And I also take it as given (though I'd like to argue against it on behalf of a client) that such statute could, consistent with the Fifth Amd's due process clause, include a cap on noneconomic damages OR include my Clinton-hypothetical rule. Does this mean that the greater power includes the lesser, and therefore that the Congress could enact ONLY these damage-cap or damage-additur rules, leaving the rest of state law intact? I don't think so. Somehow it seems to me that the 10th Amendment is MORE offended by a more piddly intrusion into state judicial practice and state common law (e.g., legislating about only one type of damages in one type of state-law case, leaving the rest of state law and practice intact), than by a more significant intrusion. This may be paradoxical, wrong, or even silly, but I think it makes some sense; though federal law is supreme, this doesn't mean that the Congress should get to micromanage state common law.

posted by sam 2:24 PM 0 comments

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