If you just tuned in, Conglomerate has been having a fun shouting match over whether a cap on noneconomic damages can survive rational basis scrutiny on an Equal Protection challenge (under Wisconsin law).

At the heart of this discussion is the fact that the cap is a regulation.  A regulation that theoretically imposes costs on some to yield a greater benefit for others.  The Supreme Court of WI couldn't see the benefit, so the piece of regulation did not pass its "rational scrutiny with a bite" test.

Now, I have been accused by Vic of being pro-regulation, but I have been in discussions about proposed regulation with others.  We generally argue about whether there is a connection between the harm we are trying to avoid or the benefit we are trying to grant and the reality of the regulation.  So, just because we want to limit advertising to children of fast food, is there an actual connection between the regulated activity (ads) and the harm we're trying to avoid (childhood obesity)?  If not, then there should be no regulation.  Also on the blogosphere has been discussion of cell phones and driving.  Is there a connection between driving while on the cell phone and increased traffic accidents or are so many other activities distracting (radio, passenger chatting, CD player), that cell phones are a red herring.  If so, then there should be no regulation.  In the comments, others have hypothetically applied Abrahamson's test to funeral home licensing, assault weapon bans, and various other regulations.  If I want to show you how stupid striking the cap down under rational basis scrutiny is, then I will point out meritorious liberal/conservative legislation that would also be struck down under this test.  If the case had come out differently, and been a situation where rational basis review is no review at all, then we can hypothesize ridiculous liberal/conservative legislation that would pass the test.

One thought I want to throw out there is why the difference here?  Why the willingness to demand a cost/benefit connection before the regulation is passed by the legislature and the unwillingness to let a court demand the same connection?  Is it a a trust in the legislature that we don't have in the judiciary?  Is it the belief that the legislature is politically the appropriate body to make the cost/benefit connection, and once they do, the courts do not have the right to step in unless a right is implicated to trigger strict scrutiny?

I don't think I have any greater sense of propriety of legislatures or courts in this regard.  We can argue that ATLA gives money to judge's campaigns, but so does the AMA, defense firms, and insurance companies.  Lobbyists on all sides are at work in legislatures and political campaigns.  I have no sense that one elected branch is beholden to special interests any more than any other.

So, from behind the magic curtain or the invisible veil, which level do we want for the majority of all legislation that is passed?  No review, some review?  As commenters have pointed out, the sword will have two sides.

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