The Nature and Impact of the 'Tort Reform' Movement

Abstract

For over thirty years, repeat players on the defense side of tort litigation have undertaken to "reform" tort doctrine in their favor. Initially, these efforts consisted of ad hoc efforts to address a series of "crises," primarily in terms of the cost and availability of liability insurance. In the 1980s, the tort reform movement began to develop a more permanent institutionalized approach to the push for "reform." Not surprisingly, there has been considerable debate about the goals of this movement, the fairness or efficiency of the specific doctrinal reforms it seeks, and the methods it uses. This Article places this debate in perspective by addressing the nature and impact of the movement in terms of its goals and the doctrinal changes it seeks, the positions for and against these doctrinal changes, the broader context of the role of courts and tort law, and of competing approaches to the reform of accident law. Ultimately, the specific doctrinal changes may be less important than the changes in this broader context, particularly the shift from judicial development of doctrine based on common law reasoning to legislative changes. In particular, this shift indicates that legislation, politics, money, and rhetoric will play an increasing role in the resolution of the struggle over the proper role of tort liability in American society.

Keywords: Tort Reform, Law and Politics, Law and Culture, Law and Society, tort theory, tort goals, legislation, tort legislation, role of courts, jurisprudence, legal theory