Against it Before He Was For It

Robert Bork is pursuing a $1M slip-and-fall case (plus punitive damages!) against the Yale Club of New York City. Which is a bit striking because in 2002 he published an article in our own JLPP arguing that tort reform was more important than originalism:

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.

This sort of thing is why I find it extremely hard to take any kind of professed "judicial philosophy" very seriously. They always seem to line up suspiciously conveniently with the judicial philosopher's policy preferences. This is, at worst, an especially clear case.

ACSBlog has the scoop.