The Logic of Legal Remedies and the Relative Weight of Norms: Assessing the Public Interest in the Tort Reform Debate

Abstract

This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. The article examines the need for consistency in legal disputes and explores the role of the principle of proportionality as a guard against destructive consistency. The natural hierarchy of legal norms inheres in remedies accorded various types of interests - from contract to criminal remedies. It also assesses measurements presented in the current tort reform debate as an application of the norms of consistency and proportionality and examines the failure of arguments advanced in the tort reform debate to include the public interest. The article concludes that identification of individual and collective interests are integral considerations in the debate on tort reform.

Keywords: tort reform