Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8

Abstract

Late twentieth-century tort theory was dominated by scholars who regarded tort law as public law in disguise, and as primarily as a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. As is now better appreciated among contemporary tort theorists, this approach obscures crucial respects in which tort law is private law—law that empowers persons who have been wronged to redress the wrongs done to them. But in practice and to some degree still in the academy, there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms on which both the ‘right’ and the ‘left’ critique modern mass tort litigation. More troublingly, the problem extends well beyond the field of torts. Indeed, this essay contends that the lawyerly loss of feel for distinctions between public law and private law explains the inability of the United States Supreme Court Justices, in Whole Woman’s Health v. Jackson, to capture why S.B. 8—Texas’s radical anti-abortion statute—really is a private attorney general statute and why, as such, it should be subject to pre-enforcement constitutional review.

Keywords: Abortion, Chilling Effect, Deterrence, Enforcement, IIED, Injunctions, Jackson, Mass Torts, Tort Reform, Tort Theory, Private Attorney General, Outrage, Private Law, Private Right of Action, Posner, Prosser, Public Law, S.B. 8, State Action, Supreme Court, Texas, Tort, Tort Theory