John Locke, The Second Treatise of Government, c. II

About thirty years have passed since the arrival of the first medical malpractice insurance 'crisis' and the birth of the modern tort reform movement. In that time, there has been a steady stream of state and federal legislation modifying or supplanting the common law of tort. Primarily, this legislation has attempted to control the aggregate amount of tort liability attaching to particular industries, professions, or activities. It has done so by various means, including the imposition of new statutes of limitation and repose, the adoption of new rules of evidence, abolition or modification of joint-and-several liability, the setting of increased thresholds for, and caps on, damage awards, and/or the regulation of contingent fees.¹

The validity of these legislative modifications of the common law has been, or could be, challenged on numerous constitutional grounds. For example, federal legislation limiting medical malpractice or product liability claims might be attacked as exceeding the scope of Congress's enumerated powers, especially in light of recent Supreme Court decisions narrowing the scope of the Commerce Clause. ² Litigants have also pointed to the Takings and the Due Process Clauses of the 5th Amendment, the Equal Protection clause of the 14th Amendment, as well as the jury trial guarantees of the 7th Amendment as constraining the ability of Congress and/or state legislatures to revamp tort law. Most successfully to date, plaintiffs have invoked "right to remedy" provisions contained in state constitutions to strike down tort reform statutes.³ Still others have made claims based on state constitutional clauses guaranteeing separated powers, jury trials, and equal protection.⁴

Judicial receptivity to plaintiffs' constitutional arguments has been uneven. Although it has had several opportunities to reject outright the proposition that there are rights-based limits on tort reform legislation, the Supreme Court has consistently balked.⁵ For their part, the lower federal courts have largely been unmoved by constitutional objections to tort reform. Many state high courts -- including those of California, Massachusetts, New York, Pennsylvania, and Virginia -- have likewise given legislatures free reign to decide how best to proceed with tort reform.⁶ However, high courts in Illinois, Ohio, New Hampshire, and Texas have aggressively policed and struck down tort legislation as unconstitutional, again, primarily on the strength of "right to remedy" provisions in state constitutions. Moreover, a majority of States' high courts have issued at least one decision in the past thirty years striking down a piece of tort reform legislation on a federal or state constitutional ground.⁷

The substantial corpus of state-court decisions second-guessing legislative tort initiatives has drawn the ire of tort reform advocates, who have castigated this body of decisional law as wholly illegitimate.⁸ Indeed, the reform advocates argue that these decisions violate the basic term of the New Deal constitutional 'settlement,' under which the U.S. Supreme Court, on behalf of the judiciary, retained its independence only because it agreed to forego aggressive policing of certain types of legislation.⁹ Tort reform statutes, they point out, are not directed at discrete and insular minorities. And, in contrast to certain other examples of laws that unconstitutionally infringe liberty-interests -- for example, statutes that criminalize speech, or authorize officials to detain or search individuals -- these statutes are not directly addressed at primary rights of conduct, but instead affect secondary rights to remedies (i.e., causes of action). As such, tort reform legislation does not seem to impinge on any core liberty or property interest. Thus, given conventional modern constitutional categories, these laws merely "adjust the benefits and burdens of economic life"¹⁰ and should be examined by reference to minimal, rational-basis scrutiny.

Of course, as applied to modern statutes scaling back tort causes of action, rational basis scrutiny will almost surely be toothless: that is in part why tort reformers advocate it. Legislatures typically justify tort reform statutes on the ground that a reduction in the aggregate levels of liability attaching to a particular activity will improve the profitability of the activity, and therefore contribute to overall economic productivity or social welfare. Courts, however, are in no position to second-guess whether the greater production of a given product, or the more frequent delivery of a given service, or the retention by manufacturers or service-providers of greater income, will in fact contribute to an improved state of affairs for the nation and its economy. As a result, the means-ends inquiry of the rational-basis test in this context seems always to entail a finding of rationality. There is, in effect, an irrefutable presumption that the chosen means (reducing the costs associated with an activity) will serve the end of social welfare. Thus, the application of the rational-basis test to modern tort reform measures effectively renders rights-based objections to such measures non-justiciable.

Viewed through the lens of history, there is a certain irony in the modern tort reformers' demand for judicial abdication in this area. At the start of the last century, a very different sort of tort reform was underway, exemplified by workers' compensation schemes. Back then, of course, it was representatives of business interests who could be found railing against "redistributive" legislation. Likewise, it was they who insisted that the courts possessed authority under the federal Constitution to strike down those tort reform statutes on Due Process grounds. Now, with the legislative tables turned, representatives of those same interests have emerged as the most energetic defenders of legislative prerogative.

This historical swapping of constitutional horses is undoubtedly galling to those who view modern tort reform as a testament to the reactionary pathologies of interest-group politics. Yet those concerned with the welfare of tort victims fare little better on this score than the reformers they criticize. After all, at the time of the New Deal, it was progressives who championed legislative supremacy and trashed the courts for 'inventing' a reactionary jurisprudence of rights. Now we find the progressives praising the courts for championing the individual against modern legislation that threatens to redistribute wealth from individual victims to corporate coffers.¹¹

Amidst the recriminations, I will aim in this paper to try to re-frame the debate in a way that is not likely to make either side happy, but may promote the emergence of a more coherent position on one important aspect of the general issue of constitutional limits on tort reform. Specifically, my concern in this paper is to develop a historically-grounded and analytically subtle framework for analyzing Due Process challenges to tort reform initiatives undertaken by Congress and state legislatures.¹²

Part I begins the project with a critical distinction that is too-frequently ignored in standard analyses of tort reform. This is the distinction between the Due Process issues raised when plaintiffs challenge legislation that hinders their ability to seek redress from certain defendants, as opposed to the issues raised when defendants challenge legislation that seeks to create liability extending beyond the scope of common law liability. I argue that something like the rational-basis framework is appropriate for judicial review of the latter type of tort reform legislation, but is not appropriate to reforms that restrict plaintiffs' rights to sue. Simply put, tort reform that affects the ability of an injury victim to sue and recover for those injuries often implicates a set of core interests in bodily integrity, freedom of movement, and the ownership of tangible property. By contrast, tort reform extending liability beyond common law boundaries affects only wealth. It does not follow from this distinction that all tort reform measures limiting liability are unconstitutional, or that all measures expanding liability are valid. (Indeed, I will argue that many legislatively-imposed limits on tort liability satisfy Due Process.) Rather, it follows that different tests for determining constitutionality are appropriate, given the different interests at stake.

Part II supports the distinction drawn in Part I by means of historical analysis. Specifically, it shows that the courts' failure to distinguish the two types of tort reform arose out of a peculiar confluence of early-Twentieth Century historical and intellectual developments. Here, I suggest that this extension was driven primarily by four factors: (1) the perception among progressives that classical tort law was itself a key feature of the regime of laissez-faire that had to be abolished; (2) the acceptance of a strongly Realist conception of tort law as nothing other than ex ante regulation and/or social insurance legislation; (3) the eventual judicial validation of the workers' compensation statutes, which seemed to suggest free reign on the part of legislatures to reduce the awards at least some plaintiffs could expect to recover; and (4) the fact that, apart from workers' compensation, the tort reforms at issue addressed unusual instances of tort liability, including, for example, the "heart-balm" actions. I argue that, with the benefit of hindsight, we can now see that each of these rationales is problematic, and that, even taken together, they are not adequate to justify the conclusion that legislatures enjoy plenary power to eliminate or scale-back tort causes of action.

Part III turns from the past to the present by identifying three modern rationales that have been or might be offered as justifications for the application of rational-basis scrutiny to tort reform statutes restricting plaintiff's rights. The first argues that tort law is a moving target -- an ever-changing body of doctrine -- and is therefore incapable of being the subject of a constitutional right. The second relies on the absence of any express "right to tort" clauses in the federal or state constitutions. The third asserts that is a fundamental jurisprudential mistake to look to the common law to supply the content of federal or state constitutional rights. Part III considers these arguments, and suggests that none establishes the propriety of the rational-basis paradigm for all instances of tort reform impinging on plaintiffs' rights. Rather, they, along with some of the arguments discussed in Part II, establish that the determination as to whether given legislation violates those rights is highly context-sensitive, depending on the nature and scope of the changes introduced by the legislation, and the problems the legislation thereby aims to solve. In other words, the issue appropriately raised by constitutional challenges to tort reform legislation adversely affecting plaintiffs' rights to life, liberty and property ownership is not whether the legislation might possibly provide a means of obtaining some aggregate good, but whether the legislation is backed by a sufficient justification in light of the burdens it imposes on those rights.

Part IV sets about the positive task of developing an alternative framework for analysis of Due Process challenges to legislation restricting plaintiffs' causes of action, one loosely inspired by an existing alternative to the rational-basis test developed by the Supreme Court in Mathews v. Eldridge¹³ to analyze procedural due process claims. Under the proposed framework, a reviewing court ought to proceed in three steps.

First, it must determine which among the individual's rights to life, liberty, and property ownership are protected by the tort cause of action, and therefore burdened by the tort reform in question. To the extent the reform addresses tort claims that vindicate core interests in bodily integrity, liberty of movement, and ownership of tangible property, the legislature faces a higher burden of justification than with respect to legislation affecting other interests, such as the interest in emotional tranquility and intangible wealth. So, for example, to the extent the recent federal Y2K statute enacted a national limit on liability for intangible economic loss flowing from the sale or installation of defective computer software, it was an appropriate candidate for deferential analysis. By contrast, laws abolishing or limiting causes of action arising out of physical injuries, invasions of liberty, or tangible property damage ought to be subjected to more rigorous scrutiny.

Having determined the type of interest affected by the tort reform legislation in question, the reviewing court must next determine which of the following two categories of tort action the reform seeks to alter: (a) a tort cause of action that entitles the victim to seek redress from a defendant for having wrongfully mistreated the victim; or (b) a tort cause of action that creates liability for conduct that (i) is wrongful, but not a wrongful mistreatment of the victim, or (ii) is not wrongful. Depending on which type of cause of action is targeted, the state's burden of justification for impeding the cause of action will again vary. A greater burden of justification applies to statutes altering the rights of victims to seek redress for wrongful mistreatment, as is most clearly the case for tort reforms adversely affecting claims for intentional batteries, false imprisonments, trespasses, and conversions. A lesser burden is imposed for alterations of the rights of those who are permitted to establish liability without proving any wrongdoing, as for example, is the case with certain claims sounding in strict liability. Whether negligence actions fall into the first or second category will depend, I argue, on the type of negligence claim being affected by legislation.

Third, and finally, the court must consider the severity of the reform's interference with the plaintiff's cause of action. Outright abolition or preemption of tort liability should provoke the most aggressive scrutiny. Modifications such as caps on particular heads of damages, such as non-economic and punitive damages, should be subject to more deferential analysis.

The method of judicial scrutiny proposed herein will provide legislatures with substantial leeway to reform the law of torts so as to render it less favorable to plaintiffs. On this account, for example, a legislature may be able to abolish outright the doctrine of strict products liability, although not necessarily negligence liability for product-related injuries. Still, in contrast to the rational-basis regime, the proposed framework does not grant legislatures free reign to enact any manner of law impinging on plaintiffs' causes of action. Thus, Part V provides examples of legislation that likely would run afoul of individual plaintiffs' Due Process rights. These include legislation that would abolish 'core' personal actions such as battery, false imprisonment and trespass to land. Likewise, legislation recently enacted by the state of Virginia -- which caps medical malpractice awards of compensatory damages (including out-of-pocket costs and lost wages) at $1.5 million - probably runs afoul of these constitutional limits. Abolition of certain forms of negligence liability may also prove to be unconstitutional. Finally, I will suggest that, even where the rights in question do not set a "hard" limit on legislative discretion, they can help generate and reinforce certain sub-constitutional doctrines, such as the traditional presumption against federal preemption of state tort law.

Finally, in Part VI, I argue that the method of analysis proposed in Parts IV and V is consistent with the recognition of Due Process rights on the part of defendants. Just as there is considerable room for legislative modification of tort law that does not run afoul of plaintiff's constitutional rights, there is likewise room for legislatures to extend liability beyond common law boundaries by, for example, rendering conduct actionable in order to deter accidents or compensate accident victims, as opposed to providing avenues of vindication to victims of wrongdoing. That room, however, is not infinite, and I offer some examples of tort reform expanding liability that would likely violate defendants' Due Process rights.

In sum, the goal of the paper is to provide a framework that is less categorical and more context-sensitive than the prevailing rational-basis paradigm, yet avoids the worst sins of Lochnerism. In so doing, I hope to enable courts and commentators to better appreciate why a great deal of legislative tort reform affecting parties on both sides of the 'v.' is constitutional, even though some versions will exceed constitutional bounds set by individuals' and entities' Due Process rights. I also hope to capture the sense in which tort law, understood as the law of civil recourse, is fundamental to our constitutional scheme of government, even though it is often revisable at the hands of judges and legislatures.

⁴For reference to several such decisions, see Robert S. Peck, Tort Reform's Threat to an Independent Judiciary, 33 Rutgers L.J. 835, 842-43 (2002).

⁵Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88 (1978) (declining to rule whether Due Process requires Congress to provide a 'quid pro quo' for the elimination of common law remedies); see also Fein v. Permanente Medical Group, 474 U.S. 892 (1985) (White, J., dissenting from denial of certiorari) (same).

⁶Cites forthcoming.

⁷Cites forthcoming. Even the California Supreme Court, which has upheld most tort reform measure against constitutional attack, struck down automobile guest statutes, which make it harder for passengers to sue non-commercial vehicle owner/operators for injuring them in the course of driving. Cooper v. Bray, 582 P.2d 604 (1978).

⁸See, e.g., Victor E. Schwartz & Leah Lorber, Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance, 32 Rutgers L.J. 907, 917-18 (2001).

⁹See Larry D. Kramer, Foreword: We The Court, 115 Harv. L. Rev. 1, 128 (2001) (describing the New Deal "settlement").

¹⁰Usery v. Turner Elkhorn, 428 U.S. 1, 15 (1976) (upholding imposition on mine owners and operators of retroactive liability for health care costs incurred by workers injured by exposure to coal dust).

¹¹Richard L. Abel, Questioning the Counter-Majoritarian Thesis: The Case of Torts, 49 DePaul L. Rev. 533 (1999) (arguing that judges who strike down tort reform legislation better represent the interests of the majority of the citizenry than do the legislators who enacted the legislation).

¹²The subject of tort law's constitutionality is complex, implicating issues of enumerated powers and federalism, various individual rights, as well as issues of retroactivity. This paper will focus on the rights accorded to plaintiffs by the Due Process clause of the federal Constitution. I leave aside the issue of whether Article I limits Congress's power to enact national tort reform legislation. Likewise, I will not discuss here the claim that certain tort reform statutes violate individuals' jury trial rights. Nor am I concerned here with the question of whether judicial revision of tort law might sometimes be unconstitutional. Finally, I am focusing on "prospective" tort reform legislation - statutes that alter common law rights and liabilities before such time as those rights "vest" or "accrue" to particular individuals by virtue of the commission of a tort, the filing of a tort suit, or the entry of a judgment in such a suit.

¹³424 U.S. 319 (1975).