Posted On: June 11, 2007 by Christopher T. Hurley

Add Robert Bork to the List of Tort Reform Hypocrites

As first noted in the ACSBlog of the American Constitution Society, Judge Robert Bork, a prominent and unabashed judicial conservative whose nomination to the Supreme Court was rejected by the Senate, is seeking $1,000,000 in compensatory damages, plus punitive damages, in a personal injury lawsuit against the Yale Club of New York City. Judge Bork was scheduled to give a speech at the club, but he fell when mounting the stage, allegedly injuring his head and left leg. Judge Bork's complaint alleges that the Yale Club is liable for $1,000,000 in damages, including damages for pain and suffering, plus punitive damages, because the defendant "wantonly, willfully, and recklessly" failed to provide staging which he could climb safely.

Judge Bork has been a leading proponent of tort reform--laws restricting the right of injured persons from obtaining full and fair compensation for their injuries from juries. The ACSBlog points out that in a 2002 article published in the Harvard Journal of Law & Public Policy--the official journal of the Federalist Society--Bork argued that frivolous claims and excessive punitive damage awards have caused the Constitution to evolve into a document which would allow Congress to enact tort reforms that would have been unconstitutional at the framing:


"State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate."

Hurley McKenna & Mertz actively oppposes tort reform legislation in Illinois and at the federal level. Such laws are unconstitutional in that they prevent fair acess to a trial by jury of all issues in a case. Federal laws which limit state tort laws also violate the United States Constitution in that they violate states' rights, no matters what cynics and hypocrites like Judge Bork may say.

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