“Off to the Races”: The 1980s Torts Crisis and the Law Reform Process

Abstract

Part I of this article introduces the topic by describing, initially, the frantic scene in the final hours of the 1987 session of the Texas Legislature, as the Senate rushed to adopt (poorly considered) tort reform legislation. The piece then steps back to take a wider view of the nationwide burst of tort reform activity in legislative arenas in the 1980s, in an effort to understand and assess its causes and effects.

Part II surveys the sources and scope of the tort reform movement in the United States during that decade, with a focus on the 1986 Justice Department report that provided the principal rationale and roadmap for much of that activity.

In Part III, the article takes a deeper look at this round of tort reform across the nation, seeking to identify which statutory solutions provided positive outcomes and which did not. Part IV discusses the Texas statute, concluding that, in comparison with tort reform legislation elsewhere, it failed to include many provisions likely to prove beneficial outcomes, while containing many other provisions that were difficult to justify.

Part V contends that the problems of Texas tort reform extend well beyond a defective product and point, more generally, to a defective legislative process in which political compromises are cobbled together, largely uninformed by attention to facts and analyses. The authors suggest that Texas create a law reform commission to enhance the quality of both process and product (and, in an appendix, provide a draft statute to establish such a commission). Part VI concludes.

Keywords: torts reform, 1980s tort reform, 1987 Texas tort reform, 1986 Department of Justice report, 1986 Justice Department report, law reform commission, Texas Law Reform Commission, tort judgments, insurance premiums