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State courts do the work federal courts can't - and shouldn't.

Article Excerpt
Ronald Reagan was right. It pains me to admit it, as our only commonality is that we are outside-the-Beltway guys who came late to an inside-the-Beltway life. But, as Reagan observed, there is an inside-the-Beltway mentality.

This Washington, D.C., mind-set has consequences not only for what trial lawyers do, but for how we live and, ultimately, for who we are.

A set of beliefs very popular in Washington has crept outward and is poisoning our legal system. Let me focus on three:

* The states are irrelevant; all that matters is what happens in Washington.

* The legislature is all-powerful; the judiciary and constitutional requirements are merely servants to legislative whim.

* Theory trumps experience.

The states don't matter. Lawyers know the important preemptive power of federal law, but consider this: Do you spend more time with your state's code or the U.S. code? With local law reporters or with federal law reporters?

The fact is, 97 percent of all lawsuits are resolved in state courts. The everyday work of the law does not happen in Washington. It happens in county courthouses across every state, where, day in and day out, lawyers and judges and juries resolve the real problems of real people.

Tort law, the kind of law most trial lawyers practice, has always been state law. Primarily, it still is, at least for now. This is so for a reason: The framers of the Constitution, versed in common law, spent huge amounts of energy convincing each other and the public that federal courts should not become common-law courts. They decided that the methods of common law would guide federal courts' decision making, but the state courts would be the mills to process the grist of everyday life.

The legislature is all-powerful. This doctrine has grown in federal constitutional law and has infected state constitutional...