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State tort law, not legislation, now produces the most serious impositions on interstate commerce and on sister states: Think nationwide class actions and punitive damage awards, often in a handful of hellhole state court jurisdictions. Even so, the U.S. Supreme Court has largely adhered to the tenet that tort law is the near-exclusive province of the states. For the coming term, though, the Court has already agreed to decide no fewer than six tort cases. The tort crisis soon will meet the Court’s federalism. The upcoming cases include Sprietsma v. Mercury Marine, concerning whether failure to install a propeller guard for outboard motors is a product design defect for which the manufacturer may be held liable under state tort law. The defendants argue that the Boat Safety Act is pre-emptive, granting the U.S. Coast Guard exclusive authority to establish boat safety standards. The Court will also hear Ford Motor Co. v. McCauley, on diversity jurisdiction in class actions. Plaintiffs’ lawyers prefer state courts, where parochial judges and juries have every incentive to maul out-of-state manufacturers. Corporate defendants prefer a more impartial federal forum, obtainable if the case meets the $75,000 diversity threshold for each class member. Trial lawyers argue that the amount in controversy should be determined by the plaintiff’s expected benefit (which the lawyers can manipulate to keep the case in state court); corporate defendants claim that the cost to the defendant, which may well exceed the plaintiff’s benefits, should also satisfy the $75,000 requirement. And, in Norfolk & Western Railway Co. v. Ayers, the Court will wade back into the out-of-control thicket of asbestos litigation, reviewing a state court verdict under the Federal Employers Liability Act. The jury awarded $5.8 million in emotional distress damages to six retired railroad workers who are not yet sick. The number of tort cases on the Court’s docket and the individual cert grants — in Ford, on a rare and thought-to-be-settled diversity issue; in Ayers, to West Virginia’s Kanawha County Circuit Court, hardly known as a prominent cert grant venue — point to a conscious judicial effort to attend to the tort problem. Still, the cases may produce disparate outcomes, confused opinions and shifting majorities. Among the reasons: An attempt to curb state court jurisdiction and verdicts seems to collide with federalism. Justices Stephen Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens, who have otherwise consistently opposed the majority’s efforts to curb national power, usually turn states’ rights apostles and advocate very narrow interpretations of federal statutory pre-emptions of state law. (Federalism, on their theory, means unconstrained power for both the national government and the states.) The “Federalist Five” justices, in contrast, are torn between their states’-rights impulse and the recognition that a collection of 50 regulatory fiefdoms — the natural result of narrow pre-emption doctrines — cannot really be the face of modern federalism. A single judicial defection to the government-maximizers may produce a federalism to warm trial lawyers’ hearts. Corporate America escaped that fate two years ago in Geier v. Honda Motor Co.; Breyer’s switch compensated for Justice Clarence Thomas’ defection to the anti-pre-emption faction. (Breyer’s pro-pre-emption opinion for the 5-4 Geier court was driven by his conviction that the pre-emptive agency rule at issue –mandating a graduated phase-in of automobile air bags — was efficient.) That luck may not hold in Sprietsma, which reads like a moot court exam on the true scope of implied federal pre-emption of Geier. Of particular concern to the defendants is the Solicitor General’s brief in the case, which avows that the Coast Guard never intended to pre-empt. Given the deference that the court tends to accord the federal government’s interpretation of its own statutes and regulations, the nominally pro-business Bush administration may have thrown Sprietsma — of potentially enormous precedential value in a large number of regulatory contexts — to the wind. That would be too bad. The Court should recognize that no one else seems capable of disciplining the trial bar and state judges and juries. Congress has ignored repeated judicial pleas to stem asbestos litigation, and legislative proposals for an expansion of diversity jurisdiction have consistently failed. Nor should the Court pay heed to the trial lawyers’ demagogic insistence on “federalism.” States’ rights must end where another state’s rights begin. In contemporary tort law, they never do. That is most definitely not the Founding Fathers’ federalism. Michale Greve is the John G. Searle Scholar and director of the federalism project at the American Enterprise Institute.

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