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THEIR VIEW: Even Anti-Trial Lawyer Legal Experts Oppose H.R. 5

Their View

By The West Virginia Record | Mar 14, 2012


WASHINGTON -- I've traded Tweets with Ted Frank -- of the Manhattan Institute and a leading critic of civil litigation -- about his position on H.R. 5, the bill mandating limits on awards in medical malpractice lawsuits.

With House leadership intent on forcing a floor vote on H.R. 5, I want to remind everyone what Mr. Frank and Walter Olson, another esteemed member of the anti-civil litigation movement, wrote last year about H.R. 5.

On May 22 of last year, Prof. Ilya Somin of George Mason Law School, a noted Tea Party-side and anti-Obamacare scholar, concurred with Prof. Randy Barnett's view that H.R. 5 is an unconstitutional infringement on states' rights and inconsistent with Republican opposition to Obamacare.

"Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other," Somin said.

The next day, Ted Frank wrote his concurrence with that view.

"It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care," Frank wrote. "It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform."

That day, Walter Olson wrote on his agreement with Randy Barnett.

"Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems," Olson wrote. "Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting?

"Even if it can identify such authority, it should also ask: is it a wise idea -- consistent with what one might call a prudential federalism -- to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine ..."

I'm not taking anyone's words out of context. I truly respect Messrs. Frank and Olson for their views, even as I disagree with them. I'm just quoting two of the bright shining lights in the "tort reform" movement, each of whom are clearly opposed to H.R. 5 in its current form. House leadership should take note.

And now, Mr. Frank has written a new post on H.R. 5 on his blog (which I recommend to anyone interested in legal policy), and I'll quote in full below:

"HR 5, federal regulation of medical malpractice litigation, represents good public policy that would reduce abusive lawsuits and improve health outcomes. But since it would transfer wealth away from lawyers to patients and doctors, the litigation lobby has actively opposed it, and quoted me out of context in that regard. One would certainly prefer that HR 5 be tweaked to unambiguously comply with a vision of the Commerce Clause consistent with, say, the Randy Barnett view. It would be painless to do so. For example, one could structure the legislation to withhold 25 percent of Medicare funds from states that fail to meet certain medical malpractice litigation standards, rather than federalizing what is (unlike, say, product liability or consumer class actions) largely a local issue: the end result would be even better than this bill.

"And states that have already implemented reform might be legitimately offended that the benefits of their foresight will be blunted when Congress shunts competing states along; one solution to that might be to limit the reforms to patients who use federally-subsidized medicine, such as Medicare, Medicaid, or PPACA exchanges. But given trial lawyer support for an administration that has propounded PPACA, the trial lawyer opposition to this bill on Commerce Clause grounds is totally disingenuous. Let's see the trial bar lobby for repeal of PPACA, and then they can legitimately complain about HR 5's federalism issues. (Of course, as a political matter, this is largely counting angels on the heads of pins: Harry Reid will never permit this to come to a vote in the Senate, and even if it passed the Senate, Barack Obama would veto this on behalf of his trial-lawyer friends.)"

First, Mr. Frank is still clearly uncomfortable with H.R. 5 in its current form. Second, I wouldn't consider the changes that he proposes to be mere "tweaks," and I'll bet the bill's sponsors and supporters wouldn't either. Third, the trial lawyers' lobby (my clients) didn't lobby for the enactment of Obamacare and supports principled conservatives in the Republican Party every day, and my longtime readers know that I HATE OBAMACARE, mostly because it's as unconstitutional as H.R. 5. Fourth, a House bill's chances in the Senate are irrelevant; something like 90 percent of House-passed bills never get a Senate floor vote. That's no reason for the House to pass an unconstitutional bill.

Cochran operates a website called The 7th Amendment Advocate. It's goal is to educate the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits, the accelerating erosion of our 7th Amendment rights, and current issues illustrating the problem and need for restoration of the Founders' original intent. It can be found at www.7thamendmentadvocate.org.

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