The Supreme Court and Tort Reform

When the Supreme Court renders a controversial decision, I learned long ago not to get too opinionated about it until I'd read the written opinions. When a decision is a 6 to 3 one or a 5 to 4 one, I know it's likely a close call, and both sides are going to have cogent reasons for their positions.

This week the Court rendered a decision involving the doctrine known as pre-emption. It was 5 to 4, so I know there probably isn't a right side and a wrong side, even before reading the written opinions. But it's unfortunate that it came when the trial lawyers party (otherwise known as the democrats) is about to take over Washington.

It's hard to justify the existence of the trial lawyer bar. They not only do nothing productive, they significantly diminish productivity, sucking out a portion of gross domestic product for themselves in the process.

When the trial lawyers move into a new field (asbestos claims, tobacco claims, pharma claims, whatever), they look for a state or states that are most receptive to their latest scam. Since most deep pocket defendants operate in all 50 states, it's easy to get jurisdiction in some really enlightened state, such as Mississippi, whose juries and judges love to spread the wealth around. They rarely go to the federal courts, because federal judges are tougher to convince that, for example, coffee cups should bear warning labels and if they don't the culprits should pay very large damage amounts, a big chunk of which goes to the lawyers.

Pre-emption says that if there's a federal law that seems intended to completely regulate a matter, the states can't impose their own inconsistent regulatory schemes. So if, for example, the feds impose comprehensive labeling requirements and insulate companies from liability if they comply, the states can't override that. The doctrine obviously makes eminent sense. The trial lawyers hate it. Alas, any time an exception to the doctrine is created, the floodgates open a bit to the kind of mischief the trial lawyers do. This latest Supreme Court case will have that effect.

I don't blame the Supreme Court for doing its job. What is required is for Congress to rein in the trial lawyers by enacting meaningful tort reform laws. That is highly unlikely with the democrats taking power, especially with a leader who apparently thinks redistribution of wealth is an admirable thing.