Orrin Hatch: “Let me close with this. I am very sympathetic to the motivation of this amendment and to the arguments that the Senator…”

“Let me close with this. I am very sympathetic to the motivation of this amendment and to the arguments that the Senator from North Carolina has made. However, there are a number of reasons that I have given here that this amendment is flawed and, in fact, is unlawful. As much as I dislike this Commerce Committee bill, and as much as I think it is a piling on, the approach it uses to resolve the attorneys' fees issue is far more preferable than an arbitrary price cap. For Congress to interfere retroactively with private contracts would be, in my opinion, unconstitutional. Congress should not break private contracts. The June 20, 1997, settlement recognized that a private agreement between a plaintiff and his or her attorney is a legally enforceable contract with which we should not unilaterally interfere, however well-intentioned our motives are. Such interference by capping a contractual fee might very well constitute a taking under the Fifth Amendment to the Constitution. The Supreme Court cases clearly say that the Federal Government cannot confiscate money or interfere with a lawful contract. Under any view of federalism, there is no justification whatsoever for Congress, entering the field of pure State activity to alter the rights and remedies of private parties and then dispensing, with no due process, protections guaranteed by the Constitution. Regulation of attorneys' fees properly belongs in the domain of the States.…”