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.