Another Conservative Legal Expert Against HR 5 Tort Reform Bills

Prof. Ilya Somin of the George Mason University School of Law is the Co-Editor of the Supreme Court Economic Review, one of the country’s top-rated law and economics journals. His work has been published in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, and numerous media outlets. He has been quoted or interviewed by the New York Times, Washington Post, BBC, and the Voice of America, among other media, and he testified at the Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor. He’s expressed conservative positions on ObamaCare, eminent domain abuse, property rights, and states’ rights. Like Prof. Barnett, he’s co-authored amicus briefs on behalf of plaintiffs seeking to declare ObamaCare unconstitutional. In other words, he’s a Constitutional conservative, Tea Party-side legal expert, just like Rob Natelson and Randy Barnett.

And Prof. Somin is another of the growing group of the conservative legal experts now opposing any federally imposed tort reform law, starting with H.R. 5, the “HEALTH Act.” Writing yesterday on the legal blog, the “Volokh Conspiracy,” he commented favorably on Randy Barnett’s post of Sunday. Wrote Prof. Somin:

I’m happy to see that his critique is having an impact. Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states’ ability to regulate conduct outside their borders.

The previous post to which he referred was in February also on Volokh, and I admit that I missed it at the time. In that post, he wrote the following:

In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any “activity.” Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward.

Federal reform is also largely unnecessary to solve the problem of excessive tort awards. Interstate competition can be just as effective as federal mandates, often more so. If a state allows excessive tort suits, many businesses will refuse to operate there or charge higher prices. This in turn reduces state tax revenue, forcing state legislatures to curb their courts.

So now we have three real Constitutional conservatives on our side: Rob Natelson of the Independence Institute, GOP & Tea Party legal rockstar Prof. Randy Barnett, and George Mason Law Prof. Ilya Somin are all telling the Republicans that H.R. 5 and federal tort reform bills are unconstitutional. AND I’m sure there will be more. AND we have a bipartisan letter from the leadership of the National Conference of State Legislators saying the same thing.

To date, NOT ONE real Constitutional conservative, Tea Party-side legal expert will opine in favor of the constitutionality of H.R. 5. And I’d be shocked to see one do so, since that’s an intellectually dishonest position.