The Constitution Did Not Enact "Tort Reformer’s" Selective Unitary State

Peter Schuck asserts that “The Supreme Court’s decision yesterday in Wyeth v. Levine gives unprecedented power to juries in deciding issues far outside their expertise.” This is a very strange claim. The tort system wasn’t created this Tuesday; juries, for better or worse, have had the authority to make judgments about torts for centuries. How the Supreme Court could be said to have conferred this authority on state courts I can’t say, and Schuck certainly doesn’t explain.

From there, Schuck goes on to argue about the deficiencies of the tort system in deciding such cases. Some of these claims have merit, although given the actual realities of American regulation they also strike me as pretty useless. I particularly enjoyed this: “And juries in different states make different decisions on the same drug–hardly a recipe for the uniformity and predictability to which manufacturers should be entitled.” Whether or not manufacturers should be “entitled” to uniformity — and, I myself, could care less about “federalism” — the framers of our constitution decided a couple centuries ago that we should have a highly decentralized system of economic regulation. (And I certainly know that manufacturers aren’t entitled to complain about such decentralization only when it doesn’t work in their favor.)

But leaving aside the policy merits of Shuck’s arguments in the abstract (and they do have some), what’s curiously missing in the first paragraphs is an explanation for what legal warrant the Supreme Court has to dismantle this system. The last I looked, “Peter Schuck doesn’t think it produces optimal policy outcomes” is not a very convincing constitutional argument. Fortunately, he goes on to include valuable information reminding us that the Supreme Court was, in fact, right:

However, as a matter of law–the confusing law that the Court has created in this area–the Court majority may have been correct. In the statute that governs the FDA, Congress expressly gave the FDA preemptive power over state tort law as to medical devices, but has never done so for drugs, leaving the implication that it did not want preemption as to drugs. (Justice Thomas, ordinarily no friend of plaintiff’s lawyers, joined the majority for this reason.) Indeed, the FDA did not even claim preemptive authority until 2006, and even then did so in a most elliptical and unexplained manner.

Right. And if Congress doesn’t like the outcome, at least 8 justices believe that it can pre-empt state jury verdicts in such cases if it chooses. I give credit to Schuck for recognizing that the law doesn’t always accommodate his dislike of the tort system, but it makes the framing of the rest of the article even more bizarre. The Supreme Court created and authorized nothing; it issued a narrow ruling that left the existing system in place and left Congress with the authority to re-alter the federal balance of powers if it chooses. Seems unexceptionable to me.