Federal and state legislation enacted in the last thirty years has sought to limit tort liability by various means. These statutory limits have been challenged on numerous constitutional grounds. Federal legislation can be attacked as exceeding the scope of Congress's enumerated powers. Litigants might also invoke certain rights guarantees contained in the 5th, 7th and 14th Amendments. Most successfully to date, state courts have relied on "right to remedy" provisions contained in state constitutions to strike down tort reform statutes.

This paper explores whether the Due Process clause of the Fifth Amendment, incorporated against the states by the Fourteenth, sets rights-based limits on tort reform. It argues, first, that a distinction must be drawn between Due Process challenges to legislation that hinders an indivdual's ability to sue in tort, as opposed to attacks on legislation that creates liability beyond the scope of tort law. Second, it maintains that, although something like the traditional rational-basis framework is appropriate for judicial review of tort reform legislation of the latter type, that framework is not helpful in analyzing legislation abridging rights of action. To aid courts in analyzing the latter sort of legislation - which forms the bulk of modern tort reform statutes -- I offer a three-part test that requires judges to ask of the legislation:

1. Which among the individual's rights to life, liberty, and property- ownership is being protected by the tort cause of action, and therefore burdened by the tort reform;

2. Does the reform seek to alter: (A) a tort action that entitles the victim to seek redress from a defendant for having wrongfully mistreated the victim; or (B) a tort action that creates liability for conduct that is not wrongful (or is wrongful, but not a wrongful mistreatment of the victim); and

3. How severe is the reform's interference with the cause of action?

Under this test, legislation hindering tort claims that vindicate core interests in bodily integrity, liberty of movement, and ownership of tangible property will face more exacting scrutiny than legislation affecting torts that protect other interests, such as the interests in emotional tranquility and intangible wealth. Likewise, a greater burden of justification applies to statutes altering the rights of victims to seek redress for wrongful mistreatment such as intentional batteries, false imprisonments, trespasses, and conversions. A lesser burden is imposed for altering the rights of those who are permitted to establish liability without proving any wrongdoing, as is the case with certain claims sounding in strict liability.

The goal of the paper is 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. In the course of making this argument, I 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.