I’ll be speaking this evening (Thurs. Sept. 30) in Baltimore as part of a dinner-hour panel discussion on medical malpractice reform sponsored by the Chesapeake Lawyers’ Chapter of the Federalist Society. Other events scheduled for this fall (sponsored by the Federalist Society unless otherwise specified):
* Mon. Oct. 11, Whittier Law School, Costa Mesa, Calif.
* Tues. Oct. 12, Chapman Law School, Orange, Calif. (lunch) and Trinity Law School, Santa Ana, Calif. (late afternoon)
* Thurs. Oct. 14, U.S. Chamber of Commerce, Washington, D.C., Legal Reform Summit, debating Bob Levy of Cato on federalism and litigation reform
* Wed. Nov. 10, Cato Institute, Washington, D.C., commenting on publication of Bob Levy’s new book Shakedown
* Fri., Nov. 12, Federalist Society National Lawyers Convention, Washington, D.C., panel discussion on regulation by litigation with (among others) former Mississippi Attorney General Michael Moore and Michigan Supreme Court Justice Robert Young, Jr.;
* week of Nov. 15 (exact date TBA), Fordham Law School, New York City.
To inquire about our availability for speaking engagements, email editor – at – [this-domain-name] for me or tedfrank – at – [this-domain-name] for Ted.
For at least several weeks Sen. Kerry has been publicly floating the theme that he and running mate John Edwards can achieve medical malpractice reform in the same way that Republican Richard Nixon could achieve rapprochement with China, presumably because their ticket would have the sort of credibility with the litigation lobby that the late GOP president had with dedicated anti-communists. The trope appeared in a Cape Canaveral, Fla. speech in late July (see National Public Radio audio coverage, Jul. 26) and more recently in response to a question in Grand Rapids, Mich. (Unofficial Kerry for President blog, Aug. 2; similarly (and by same writer), Doctors and Nurses for John Kerry site; Robert S. Greenburger, “Doctors Diagnose Kerry as High Risk”, Wall Street Journal, Aug. 5 (sub); see also Joel B. Finkelstein, “Edwards’ trial lawyer past raises red flags for doctors”, American Medical News (AMA), Jul. 2).
We reported on the controversy last week (Aug. 5). Martin Grace has several follow-up comments (Aug. 6) on the breeziness of the Kerry proposals toward federalism, as well as on the apparently incurable Democratic tendency to blame the whole problem on insurance providers, even though “the largest med mal providers in a given state tend to be owned by the docs” who have no very obvious incentives to self-gouge (more, more). And George Wallace at Decs & Excs (Aug. 5) has more about Edwards’ enthusiasm for curtailing the McCarran-Ferguson Act, which leaves insurance regulation to the states. (Update: David Giacalone, Martin Grace and Wallace have much more on this, follow the links).
A reader on Capitol Hill writes to say that from the appearance of things, the Kerry proposals appear to differ little if at all from proposals repeatedly put forth by congressional Democrats as alternatives to GOP-sponsored medical malpractice reform. Those proposals (the correspondent adds) have been at best weak as a way of curtailing litigation, and in some instances would actually encourage it. For example, the Democratic alternative Rep. Conyers offered to H.R. 4280 can be examined in the Congressional Record dated May 12, 2004. It includes a (toothless) mandate for nonbinding mediation of state court malpractice cases, and takes care to specify that this mandate will pre-empt and invalidate all otherwise prescribed forms of alternative dispute resolution — including those currently required in some states which do much more to curb litigation — as well as all contractual barriers to suit. Having looked through this Conyers amendment, however, I should probably retract my hasty assumption (voiced last week) that the Democrats on the Hill had been big defenders of federalism on this issue — their bill seems just as willing as the Republicans’ to dictate to state courts, it just wants to dictate different things.
According to one of his health care advisers, the Massachusetts Senator actually supports “meaningful but enactable” malpractice reform, according to a new report. (Mark A. Hofmann, “Adviser says Kerry supports malpractice reform”, Business Insurance Daily News, Aug. 4). The Kerry campaign website has more (scroll down). George Wallace at Decs & Exs (Aug. 4) doesn’t think there’s much here that’s new, but we’re not so sure, especially on the punitive damages language and in the failure to raise federalism objections which ordinarily are front and center in Democratic resistance to liability reform at a national level.
It’s said to afflict many lottery winners, resulting in impulsive spending and social isolation. What about lawsuit winners? I raise the question on PointOfLaw.com (Jul. 23), where my dialogue with Michael Krauss on gun suits and federalism is also now complete.
My friendly debate at PointOfLaw.com with Prof. Michael Krauss of George Mason University on federalism and the gun pre-emption bill has now gone through two rounds and has attracted notice from Ramesh Ponnuru at National Review Online and from Jacob Sullum and Nick Gillespie at Reason “Hit and Run”. Check it out and you’ll learn more about the federal Commerce Clause, states’ tendency to engage in “beggar-your-neighbor” strategies on product liability, and the question of whether the failure of most of the municipal gun suits means we can relax about a threat to Second Amendment liberties.
My friendly argument with Michael Krauss over federalism and gun litigation (he thinks the Constitution bars national pre-emption, I don’t) just began at PointOfLaw.com. I’ve just posted my initial volley, and Michael tells me he’ll have a response ready to post this morning. We’ll be going through Thursday or Friday, exploring different aspects of the issue. Stop by and, if the issue interests you, check in often for updates.
“Two years after DirecTV launched a legal onslaught against thousands of alleged satellite television ‘pirates,’ a Florida resident who was sued by the company is now claiming malicious prosecution.” The company has filed numerous actions against persons it believes have been in possession of illegal signal piracy devices — famed non-murderer O.J. Simpson is one such defendant — but critics charge (see Jul. 24) that it is casting too broad a net. “The legal assault began after a series of raids on companies that sold decoders enabling viewers to steal DirecTV’s signal. The satellite television operator obtained the names of some 100,000 people in the raids from credit card receipts and other lists.” In the Florida case, Luc Senatus alleges that he was a victim of credit card theft and neither purchased nor received a signal decoder, but was sued by DirecTV anyway. (Matthew Haggman, Miami Daily Business Review, Mar. 26).(& letter to the editor, Oct. 31). Update: see also Crime and Federalism, Feb. 15, 2006 (court rules suits by DirecTV not a RICO violation).
Drafted with the specific intent (at least on the part of two of its best-known framers) of banning a wide range of legislatively enacted “civil unions” as well as same-sex marriage, the ghastly Federal Marriage Amendment is anything but conservative: it would succeed in damaging both federalism and the principle of separation of powers. (Jacob Levy, “Law Breaker”, The New Republic Online, Feb. 18). See Alan Cooperman, “Little Consensus On Meaning Of Marriage Amendment”, Washington Post/Constitution Center, Feb. 14 (“principal drafters” Profs. Robert George and Gerard Bradley acknowledge that they intended to ban some forms of civil unions); letter from several libertarian/conservative law professors opposing FMA (Volokh Conspiracy, Sept. 11).
Yet more links: MarriageDebate.com (published by FMA supporters, but airing both sides); FamilyScholars.org (also a mix of views); Volokh Conspiracy (numerous posts, use search function); AndrewSullivan.com; LawfullyWedded.com; Jack Balkin, Feb. 14; Prof. Bainbridge, Jan. 21 (endeavoring to defend Bush stance); Three Years of Hell, Feb. 11 (arguing that FMA would merely curb judicial activism on civil unions); David Horowitz, “Wrong Idea, Wrong Time”, TechCentralStation.com, Nov. 24; David Brooks, “Give everyone access to the power of marriage”, New York Times/International Herald Tribune, Nov. 25.
The Class Action Fairness Act, a version of which has already passed the House with White House support, may be brought to the floor of the Senate tomorrow, but Democratic leaders are saying they have enough votes lined up for a filibuster to prevent its passage (Jesse J. Holland, “Supporters looking for more votes to help class action legislation past filibuster”, AP/San Francisco Chronicle, Oct. 20; Helen Dewar, “GOP Pushes Vote to Curb Class-Action Suits”, Washington Post, Oct. 21; Heather Fleming Phillips, “Group tries to rein in lawsuits”, San Jose Mercury News, Oct. 21). If so it’s a shame, the more so as some of the most persuasive argumentation for the CAFA has come from New Democrat circles, especially from Walter Dellinger, solicitor general during the Clinton Administration, now a professor at Duke Law and partner at O’Melveny & Myers (home of our co-blogger Ted Frank). (“The Class Action Fairness Act”, Progressive Policy Institute, Mar. 11). “The states whose courts have honorably decided not to play class action games are, contrary to fundamental federalism principles, being forced to transfer authority over their citizens’ claims and the interpretation of their own laws to other states whose courts seem to have an insatiable appetite for such lawsuits,” according to Dellinger. See New Democrats Online, “Breakthrough in the Courts?”, Feb. 19; “Compromise on Class Action Reform”, May 1.