Restriction of Tort Remedies and the Constraints of Due Process: The Right to an Adequate Remedy

30 Pages Posted: 3 Feb 2006

See all articles by Tracy A. Thomas

Tracy A. Thomas

University of Akron School of Law


Hidden within the latest generation of tort reform laws is the dangerous clause of remedial jurisdiction stripping. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions in tort reform strip courts of all power to award punitive or nonpecuniary damages in excess of legislative limits. While many states have acted to address the policy questions of McTorts and runaway juries, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. The tort reform remedy restrictions work arbitrarily to restrict an individual's right to a meaningful remedy that threatens to dilute common-law rights. This article argues that the Due Process Clause provides a restraint on the jurisdiction stripping provisions of recent tort reform statutes that deny plaintiffs a fundamental right to a meaningful and adequate remedy. As part of a symposium of Remedies scholars, the article seeks to contribute to the larger discourse on remedial perspectives on tort damages.

The article first argues that the legislative action of tort reform remedy stripping exhibits a misuse of jurisdictional defining power. While remedy stripping is often a politically expedient way to legislate, its pretextual use of remedies rather than rights is formalistically dishonest and insulates representatives from the political accountability that should follow as a consequence of legislative action in a democracy. Furthermore, the remedial maneuver exceeds the purpose and intent of the legislative power to define and organize the judiciary. Such a violation of the spirit of jurisdictional authority converts the legislature's power to define the jurisdiction of the courts into a plenary power to regulate, or eviscerate, all remedies and legal rights. This unrestrained legislative power has been challenged in the past as a violation of separation of powers. Legislatures have thus acted to circumvent these structural barriers by using their jurisdictional power to shackle the judiciary's ability to act. The article argues that such legislative misuse of jurisdictional power is held in check by the substantive protections of the Due Process Clause. Building upon prior work asserting the fundamentality of the right to a remedy, this article develops the correlative due process protection for this fundamental right mandating heightened review of legislation that burdens or denies the remedial right. Pulling together the disparate strands of legal rules in existing case law, the article develops a cohesive theory of due process protection for the right to an adequate remedy. State court decisions invalidating tort reform remedy restrictions appear analytically scattered and based upon seemingly narrow doctrinal rules of "quid pro quo," "due course of law," or access to the courts. However, upon closer look, these cases reveal a common theoretical foundation emanating from Due Process. When these decisions are compared to U.S. Supreme Court decisions spanning the twentieth century, the right to an adequate and meaningful judicial remedy emerges even more clearly. Locating this Due Process requirement of an adequate remedy significantly alters the way in which courts currently assess the legality of tort reform legislation. Such a heightened standard does not necessarily sound the death knell for tort reform, but does demand a more substantial basis for restricting remedies and averts the political obfuscation of the significant remedial issues dominating tort reform today.

Keywords: tort reform, due process, jurisdiction

JEL Classification: K1, K10

Suggested Citation

Thomas, Tracy A., Restriction of Tort Remedies and the Constraints of Due Process: The Right to an Adequate Remedy. Akron Law Review, Vol. 39, 2006, University of Akron Legal Studies Research Paper No. 06-01, Available at SSRN:

Tracy A. Thomas (Contact Author)

University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6617 (Phone)
330-258-2343 (Fax)

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