Tort Law for Federalists (and the Rest of Us): Private Law in Disguise

Abstract:     
This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court's 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism.

Keywords: torts, private law, common law, redress, public law, damages, punitive damages, formalism, Federalists, Supreme Court, pragmatic conceptualism

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