The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs

104 Pages Posted: 25 Aug 2005 Last revised: 16 Nov 2011

Date Written: November 15, 2011


The last two decades have witnessed the enactment of an array of defendant-friendly tort reforms, in turn prompting numerous constitutional challenges to them. Some state courts have been receptive to these challenges, but the likely prevailing view among them, and certainly the predominant view in the federal courts and the legal academy, is that such challenges amount to attempts to resurrect Lochner's misguided constitutionalization of mere common law. According to this view, modern tort reform measures are a textbook example of the sort of social and economic legislation to which highly deferential rational basis review ought to apply.

This Article takes a fresh look at the issue of constitutional limits on tort reform. It argues that, as a matter of history, text, structure, and normative theory, the Fourteenth Amendment confers on individuals a "structural due process" right to a body of law that empowers them to seek redress against those who have committed legal wrongs against them. Corresponding to this right is a prima facie affirmative obligation on states to provide a law of redress. Recognition of this right and duty in turn warrants judicial review of defendant-friendly tort reforms that is more searching than rational basis analysis, and more sensitive to the underlying tort claim and the type of reform at issue, yet still leaves ample room for states to engage in responsible law reform.

One broader ambition of this Article is to recover an intellectual tradition that views public and private law holistically - as integrated components of our constitutional frame of government - while also demonstrating that this way of thinking is not bound up with commitments to laissez faire, formalism, or judicial imperialism. It also outlines a political theory, inspired by Locke and Blackstone, which identifies the special characteristics and functions of a law for the redress of private wrongs, and thereby helps to explain why tort law has enjoyed, and perhaps should continue to enjoy, a central place within our legal system.

Keywords: affirmative rights, Blackstone, Coke, common law, constitution, due process, duty, fourteenth amendment, Hale, injury, Lochner, Locke, privileges or immunities, private law, private wrongs, protection, recourse, redress, relational duty, social contract theory, substantive due process, structural

Suggested Citation

Goldberg, John C. P., The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs (November 15, 2011). Yale Law Journal, Vol. 115, p. 524, 2005, Vanderbilt Public Law Research Paper No. 05-27, Available at SSRN:

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

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1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

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