National Geographics: Toward a 'Federalism Function' of American Tort Law
University of Illinois Springfield - Department of Legal Studies
July 15, 2014
51 San Diego Law Review 81, 2014
Scholars of tort law are in apparent agreement over its dominant public law functions. Typically among those are corrective justice, loss distribution, and optimal deterrence. Inter-subjective dispute functions such as victim compensation are generally considered “secondary”, a fact which first-year law students often find perplexing. Meanwhile, tort doctrine — traditionally subject of state common law adjudication — has itself has come under increasing influence form federal constitutional, statutory, and regulatory authority. As this influence grows, should we be comfortable with increasing federalization of this immanently community-based norm system within civil justice? In this article, I argue that current contours in the federalization of tort law support what political theorists have referred to as “cooperative federalism” — a pattern of shared federal-state rule where authority remains divided based on competence and complementarity. Inviting state court adjudicators into contemporary debates on cooperative federalism, tort law itself becomes a new site for this intensive public law reflection. This role, the “federalism function” as this article terms it, should be recognized among the preeminent public law priorities interacting in Torts disputes today.
Number of Pages in PDF File: 72
Keywords: federalism, torts, tort law, federal preemption, legal anthropology, nationalism, legal geography
Date posted: July 16, 2014 ; Last revised: November 11, 2014