Tort Experiments in the Laboratories of Democracy

Abstract:     
This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called federalism revolution of the 1990s to limit Congressional authority in the name of states' rights, it was simultaneously cutting back on the ability of states to provide their citizens with tort rights and remedies through preemption doctrine and due process limits on punitive damages. This Article explores these trends in the states, Congress, and the Supreme Court and concludes that part of the problem in federal-state relations in the area of tort law is that Congress and the Supreme Court have shifted from a private law to a public law view of tort that does not give sufficient attention to the important private law goals tort law still serves. This has allowed Congress and the Court to more easily displace state tort law without considering the need for any substitute federal remedy. Once the private law aspects of torts are recognized, it becomes easier to identify and value the role tort law plays in our federalist system.

Keywords: tort law, federalism, preemption, punitive damags, privacy rights, publicity rights, Supreme Court, Congress, consumer protection, environmental protection

JEL Classifications: K13, K32, K41

Accepted Paper Series