Mich Ct App holds that absolute FDA approval defense in product l ...

[David Bernstein]

The right to remedy rulings do tend to be bizarre, because no one is denying
the plaintiffs in these cases a remedy, just limiting the scope of the
remedy, and, in particular, often limiting non-economic damages, for which
there are no objective standards to begin with.  There are also several
decisions suggesting that the common law of torts can only be changed by the
courts, not by the legislature, decisions reminiscent of one of the least
persuasive of the Lochner era decisions, Ives v. South Buffalo RR, which held
worker's comp. unconstitutional in NY.  Sometimes the decisions are based on
the idea that consumers are losing their rights and not getting anything in
return, completing ignoring the relatively obvious fact that medical
services, consumer products, etc., will be cheaper if their providers are not
faced with unpredictable and expansive liability.  Bizarre, indeed.

This is a future research project of mine, but there is almost no literature
on it in the law reviews.  Yet another example of the neglect of state
constitutional law by the legal academy.

David Bernstein

In a message dated 2/21/2002 12:23:05 PM Eastern Standard Time,
crossf at MAIL.UTEXAS.EDU writes:


> David Bernstein suggested:
>
> There have been many bizarre rulings striking down various tort reform laws
> on state constitutional grounds, most of which can be explained by the fact
> that the laws were passed by Republican legislatures and considered by
> Democratic justices.
>
> A student of mine did a researchproject on state supreme court rulings on
> damages caps and found that 53% of Democracts found constitutional
> violations, with 38% of Republicans doing so.  This was weak confirmation
> of the hypothesis, given the relatively small sample size.  More
> interesting to me was the theories they employed.  Dems were likely to
> strike down the laws under equal protection or a constitutional right to a
> remedy or as illegal special legislation, while Reps were more likely to
> find that they violated the right to jury trial or due process.
>
> Frank Cross

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