FW from Dan Conkle: (Not?) Fair to NYT

[Mark Tushnet]

Michael McConnell writes that "important spillover effects" should be "one important element" in allocation decisions.  I have two questions about spillover effects.  (1)  Why can't we sensibly think about "moral spillovers" of a sort that might be implicated in Oregon's decision?  Oregon's statute and the national publicity attendant on it, it might be said, contributes to the creation of a nation-wide culture of death.  Maybe Michael's modifier "important" responds to this concern, but if so it would help to have a clearer specification of the modifier's generic content.

(2)  Why are runaway juries imposing costs on people elsewhere but irresponsibly lax state law-makers not doing so (when they set standards of behavior so low as to license design decisions that predictably cause harm to people, not always purchasers, outside the state of manufacture or purchase or, sometimes, use)?  This question supports federalization of tort law, but not "tort reform" of the sort Michael describes.  The general point was made in West Coast Hotel v. Parrish and its description of low standards as a subsidy to the irresponsible (in that context, the irresponsible employer).  And, of course, Wickard v. Filburn is *about* spillover effects, which suggests that we might want to look for some principle narrower than spillover effects to define the proper scope of national power.  Again, the modifier "important" and the qualification that spillover effects are "one important element" ― presumably among others ― might do the job, but, again, greater specification seems necessary.

Mark Tushnet
Georgetown University Law Center
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