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Sotomayor's disturbing thoughts on tort reform

Ted Frank notices that in her 1996 Suffolk University Law Review article, Judge Sotomayor makes points relevant to tort reform:

  1. Positively, she seems supportive of Daubert and skeptical of hired-hand experts, which is reassuring even though the Daubert line of cases are not polarizing decisions among the members of the current Court.

  2. Ominously, however, she characterizes at least some tort reform laws as "overreactions that undermine the principles of our judicial system": "For example, legislators have introduced bills that place arbitrary limits on jury verdicts in personal injury cases. But to do this is inconsistent with the premise of the jury system." (citing as an example of such legislation the Common Sense Product Liability Legal Reform Act of 1996) (footnotes omitted)

Sotomayor's statements are deeply troubling given the shenanigans through which state supreme courts have regularly stricken down legislative tort reforms on dubious state constitutional grounds. (For good discussions, see Victor E. Schwartz, Judicial Nullification of Tort Reform: Ignoring History, Logic, and Fundamentals of Constitutional Law, 31 Seton Hall. L. Rev. 688 (2001); Victor E. Schwartz & Leah Lorber, Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance, 32 Rutgers L. J. 907 (2001).)

Even if Judge Sotomayor's comments are read merely to express policy disagreement, they are troubling. If her notion is even stronger -- that tort reforms such as the Common Sense Product Liability Legal Reform Act of 1996 are in fact unconstitutional -- then I agree with Ted's conclusion that her "argument is not just a statement of judicial activism, it's a disturbing statement of judicial supremacy over the other branches of government." Given the strength of her claims -- that such laws "undermine the principles of our judicial system" and are "inconsistent with the premise of the jury system" -- the less charitable reading seems more than plausible. In any event, I echo Ted's "hope [that] someone on the Senate Judiciary Committee inquires into it."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.