Former senator Fred Thompson has piqued conservatives’ interest as a possible presidential candidate in large part because he is to the right of John McCain and Rudolph Giuliani, and has been there for longer than Mitt Romney has. But there are a few issues where Thompson has parted company from most conservatives. One of them is tort reform.
Thompson didn’t oppose all types of tort reform, as some outlets have reported. When President Clinton vetoed the Securities Litigation Reform Act, Thompson voted to override the veto. (John McCain voted with Clinton.) After Sept. 11, he voted to protect businessmen from liability for terrorist attacks. And he voted for class-action reform, too.
On some issues, however, he voted against tort reform. In most of these cases, he objected to the reform on federalist grounds. For example, he voted against a federal reform of medical malpractice law, arguing that states should enact any needed reforms. There is a strong argument for Thompson’s position. If a state makes it too easy to sue doctors, most of the costs of that policy will fall on the state’s own residents. Doctors, especially in specialties that tend to draw litigation, may leave the state for more welcoming jurisdictions. So there is a built-in incentive for states to get the policy right.
But sometimes the incentives don’t line up so conveniently. The worst jurisdictions effectively set product-liability law for the entire country, because they apply their standards to companies everywhere. The litigation explosion is a symptom of a breakdown of federalism, which wasn’t meant to let the judges of Madison County, Illinois, regulate interstate commerce.
Thompson’s opposition to tort reform hasn’t always tracked this distinction. One of the few restraints the federal courts have imposed on state courts’ legal adventurism has taken the form of reading federal regulations to exclude state regulations in some areas of commerce. When federal regulation “pre-empts” state regulation, companies can look to federal agencies and courts to know what rules they have to follow. They can participate in interstate commerce without keeping track of 51 conflicting (and shifting) legal rules. In the name of federalism, however, Thompson promoted legislation that would, for the most part, remove this restraint. Under his proposal, Congress would have to say explicitly that it meant to displace state regulations—and even if it did say it explicitly, states that found crafty ways to get around congressional rules would be free to do so. The practical result would be a gold mine for trial lawyers and activist state attorneys general.
The legal landscape was different when Thompson formed his views about federalism and tort reform. State AGs were less creative, the trial bar was less specialized and aggressive, and there were fewer “hellhole jurisdictions.” Under today’s circumstances, he might be open to rethinking his position.
In other instances, however, neither federalism nor a mistaken view of it can explain Thompson’s opposition to tort reform. In 1998, as the Senate debated a massive anti-tobacco bill, an amendment was offered to cap the fees of the anti-tobacco lawyers. In many cases, these lawyers had been asked to represent state governments by attorneys general to whose campaigns they had been contributed. In some cases, they then sued the tobacco companies under new laws that had been written to ensure that they would win. They charged as much as $92,000 an hour. They then agreed to dump the whole thing in Congress’s lap—but, of course, insisted that the only thing that wouldn’t be up for grabs was their fees. As libertarian legal writer Walter Olson said at the time, a fee cap would have been “more like a cap on ransom payments to an airline hijacker than . . . like an interference with a regular market transaction.”
But Thompson sided with the trial lawyers, joining such other unlikely defenders of the sanctity of “free markets” and “private contracts” as Richard Cohen.
Will any of this matter to Republican primary voters? It’s hard to see them getting worked up about “federal pre-emption.” These issues don’t have the political power of taxes, or guns, or abortion. But if conservatives mean what they say when they complain about the dangerous rapacity of the trial bar, they ought to ask Senator Thompson a few hard questions.
