TY - JOUR
T1 - Federal administrative health courts are unconstitutional
T2 - A reply to Elliott Narayan, and Nasmith
AU - Widman, Amy
AU - Hochberg, Francine A.
PY - 2008/8
Y1 - 2008/8
N2 - This commentary responds to the essay by Elliott, Narayan, and Nasmith wherein they propose that the federal government may preclude plaintiffs with medically inflicted injuries from bringing state common-law tort claims against those whose negligence caused their injury. The administrative system championed by Elliott and other proponents is a radical departure from the current civil justice system. Specifically, we argue that the administrative health courts, as proposed, violate the commerce clause, the spending clause, the Seventh Amendment, and separation of powers principles. The commentary concludes that such a system is fatally flawed and cannot withstand constitutional scrutiny. Moreover, we are not persuaded that Congress will be able to ground such a radical constitutional restructuring in any sound public policy, as the majority of studies do not evidence Elliott, Narayan, and Nasmith's presumption that the civil justice system has failed in the medical malpractice context.
AB - This commentary responds to the essay by Elliott, Narayan, and Nasmith wherein they propose that the federal government may preclude plaintiffs with medically inflicted injuries from bringing state common-law tort claims against those whose negligence caused their injury. The administrative system championed by Elliott and other proponents is a radical departure from the current civil justice system. Specifically, we argue that the administrative health courts, as proposed, violate the commerce clause, the spending clause, the Seventh Amendment, and separation of powers principles. The commentary concludes that such a system is fatally flawed and cannot withstand constitutional scrutiny. Moreover, we are not persuaded that Congress will be able to ground such a radical constitutional restructuring in any sound public policy, as the majority of studies do not evidence Elliott, Narayan, and Nasmith's presumption that the civil justice system has failed in the medical malpractice context.
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U2 - 10.1215/03616878-2008-016
DO - 10.1215/03616878-2008-016
M3 - Comment/debate
C2 - 18617675
SN - 0361-6878
VL - 33
SP - 799
EP - 832
JO - Journal of Health Politics, Policy and Law
JF - Journal of Health Politics, Policy and Law
IS - 4
ER -