July 18, 2005
Two Ways of Looking at "Rational Basis"
Posted by Will Baude

David Bernstein at the Volokh Conspiracy and Christine Hurt (below) have both posted about this decision from the Wisconsin Supreme Court, striking down medical malpractice damage caps because they lack a "rational basis", and in particular, fail to limit the costs of health care. I add a few observations.

Professor Bernstein complains that the decision is "remarkably illogical":

Won't have a noticeable effect? It's possible. Is not "rationally related?" Only because the court seems to define "rationally related" as "having a guaranteed large effect."

"Rational" is, of course, a legal term of art, so Bernstein's argument is insufficient to show that the rationality threshhold is lower than the noticeable-effect threshhold.

Professor Hurt, meanwhile, brings a bit of actual empiricism to bear, and points out that there is in fact very little evidence that malpractice caps do their job. She then wonders about that term of art, "rational":
As long as the legislation has or could have an effect greater than zero, even if not noticeable? That is quite a bit of deference there. I would hope that rational basis scrutiny would require some estimation that the legislation would effect its goals to a noticeable degree.

The trouble here, which leads to some of Bernstein's and Hurt's disagreement, is that we have two rational-basis tests. For example, compare Beach Communications ("(A) statutory classification ... must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ... In other words, a legislative choice ... may be based on rational speculation unsupported by evidence or empirical data.") with Cleburne (finding a statute to be irrational because there was no empirical evidence supporting it in the record) or Stevens' concurrence in Cleburne (suggesting that a statute is rational only if a "rational member of th(e) disadvantaged class" might support it). [The Wisconsin Court collects other cases here.]
This is why C.J. Abrahamson admits in her opinion that she is applying "rational basis with teeth," which involves some judicial scrutiny rather than sitting around like a potted plant. Since the case goes off on the Wisconsin Constitution, which rational basis to apply (toothy or toothless) is surely just a question of state law. One could object that the Wisconsin Constitution mandates some other doctrinal rule, or that there is in fact plenty of empirical evidence despite what Professor Hurt and the Court think, but there's simply no reason to think that the rational basis test imposed by a state constitution should always be the toothless one that Bernstein envisions.

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