Testing Two Assumptions About Federalism and Tort Reform

Abstract

A hallmark of the "Republican Revolution" is a shift of policymaking authority from the national government to the states. Various federal legislative initiatives would give states greater flexibility and autonomy in deciding how to fight crime, deliver health care to the poor, and reform welfare. One remarkable exception to this pattern of preferring state level policymaking is the area of tort reform. In 1996, both the United States House of Representatives and Senate passed legislation that, if enacted, would preempt state tort law in significant ways. Why would a Congress otherwise apparently committed to vesting states with greater policymaking autonomy call for federal control of tort law? These developments invite a reconsideration of federalism values and tort policymaking.