It was probably inevitable: given that trial lawyers have tidily disposed of most state litigation curbs by getting state courts to declare them in violation of their state constitutions, the question arises of how they're going to dispose of nationwide litigation curbs enacted by Congress, which are not subject to state constitutional attack. The need will be for some way of arguing that they violate the federal constitution, although the jurisprudence of the U.S. Supreme Court has not been particularly friendly to such lines of argument for many years. And now, sure enough, here's an article in the Yale Law Journal by Vanderbilt lawprof John C.P. Goldberg (PDF) proposing that federal courts proclaim for themselves a broad power to strike down congressionally enacted liability curbs. At the Yale Law Journal quasi-blog, The Pocket Part, author and Common Good founder Philip K. Howard debates the idea with John Vail of the ATLA-allied Center for Constitutional Litigation.
Liability limits: violative of the U.S. Constitution?
Center for Legal Policy at the