In their zeal to adopt a federal malpractice reform bill to dictate procedures to state courts, many Republicans in Congress are doing precisely what they rightly accuse Democrats of doing: blithely disregarding the Constitution’s clear limits on federal power.
Their proposals, once encapsulated in H.R. 5 and then slipped into the Senate Republican “jobs bill,” not only violate the true meaning of the Constitution, but also likely run afoul of such modern Supreme Court cases as New York v. United States and Printz v. United States, which voided efforts to impose unfunded federal mandates on state officials. The same Virginia attorney general who brought the first suit against Obamacare has threatened to challenge this measure in court as well.
The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty.
As I show in my new paper, The Roots of American Judicial Federalism, one of the chief causes of the American Revolution was the British effort to undercut local courts by centralizing the administration of justice. As I also explain, after the Revolution Americans deliberately enshrined the local-control principle in our Constitution.
In other words, medical malpractice reform, like most other aspects of civil justice, is a matter for state, not federal, law.
You can download a copy of The Roots of American Judicial Federalism here.