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Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail R. Moncrieff

Law Faculty Articles and Essays

Because tort law and healthcare regulation are traditional state functions and because medical, legal, and insurance practices are localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. This conventional view fails to consider the impact that federal healthcare programs have on the states' incentives to regulate. As a result of federal financing, each state externalizes some of the costs of its malpractice policy onto the federal government. The federal government therefore needs to take charge of medical malpractice in order to fix the spillover problem created by existing federal healthcare programs.

Importantly, …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff

Faculty Scholarship

Because tort law generally and healthcare regulation specifically are traditional state functions and because medical, legal, and insurance practices are highly localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. Indeed, this view is so widely held that modern legal scholarship takes it for granted. Articles on general federalism issues use medical malpractice as an easy example of a policy in which federal intervention lacks functional justification, and articles that focus on federalization of other tort reforms use medical malpractice as an easy foil, pointing out that the uniformity interest that justifies …