Protective(?) Federalism

Orin Kerr at the Volokh Conspiracy responds to a comment on Greedy Clerks regarding conservatives' seeming hypocrisy in regards to tort reform:

When it comes to tort reform . . . many conservatives . . . switch to talking about the dangers of state regulation and the need for federal protection of businesses. Are these conservatives just a bunch of hypocritical fair-weather federalists who want to protect businesses but not people? Or are pro-plaintiff state courts effectively creating inconsistent state regulatory schemes -- exactly the kind of problem that the Commerce Clause power was designed to address?

It's an interesting question. I have a couple initial thoughts.


First, as was the case in the same-sex marriage amendment following the Goodridge decision, conservatives argued that federal regulation was required in order to prevent one state court from bullying all the other states into adopting same-sex marriage. Similarly when one state's court allows huge punitive damage awards, multi-state corporations' activities in other states are collaterally regulated. This was a big issue in State Farm v. Campbell. So, I guess, the idea is that either way federalism is going to be impaired, and a little regulation will help a larger encroachment.

Second, I would agree with Orin's second point, that this seems like the kind of problem that the commerce clause is "supposed" to remedy. Most conservatives (at least those I know) admit that there are race-to-the-bottom problems and interests in uniformity that warrant federal regulation, and this seems like one that is worthy of regulation.

UPDATE: Volokh weighs in.

Continue Reading "Protective(?) Federalism" . . .

Kowalski v. Tesmer

What I'm trying to figure out in Kowalski is the relevance of the Younger v. Harris decision to the court's finding that the attorneys didn't have standing. Justice Ginsburg points out rightly in her dissent that "[w]hether a federal court should abstain under Younger is . . . distinct from whether a party has standing to sue." In the absence of a pending state action involving the attorneys, Younger should clearly be a separate analysis.

It seems that the court is either trying to raise the third party standing requirement when the party whose 1983 immunity is being infringed is currently involved in state court litigation or trying to extend the Younger doctrine to include all actions extending from the state court litigation.
Any thoughts?

UPDATE: Crime & Federalism weighs in.

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Let the Games Begin!

The Becker-Posner Blog looks like it is finally up and running with it's first post. The Nobel Laureate issued the following short and sweet statement:

preventive war is justified because of the potential severe consequences of waiting until attacked to apprehend.

Hmmmm. I guess I was expecting a little more analysis and argument. I'm sure it is just yet to come. Or, perhaps, they intend to make bold, essentially contested statements and bring out the arguments in the comments. We shall see . . .

Continue Reading "Let the Games Begin!" . . .