Vanderbilt Lawyer - Volume 35, Number 2

The Constitutional Status of Tort Reform

Should states face rights-based limits on their authority to enact defendant-friendly tort reform legislation?

by John C. P. Goldberg Uncle Sam. Illustration for the Vanderbilt Lawyer by Jerry Dillingham

Suppose a state legislature enacts a law that, in the name of economic growth, immunizes car manufacturers from liability for negligence. As a result, a driver severely injured in an accident cannot recover damages from the manufacturer even if she has proof that her injuries were caused by its failure to take reasonable steps to test the model's new brake system. We might agree that such a law is short-sighted or unjust. But would a court be justified in striking it down as a violation of the driver's federal constitutional rights?

The statute I have described is hardly unthinkable. Congress recently passed a law that bars all tort claims against gun manufacturers for injuries resulting from the unlawful use of a gun. So it is worth asking: Do states face any rights-based limits on their authority to enact defendant-friendly tort reform legislation? Or do they act at their discretion, subject only to the control, such as it is, of the political process? (The gun bill mentioned above, as well as the array of tort reform measures adopted at the state and federal level in the last 25 years, attests to the political clout of repeat-player tort defendants, their insurers, and interest groups such as the NRA.)

Several state courts, including, recently, the Wisconsin Supreme Court, have struck down liability-restricting laws for violating rights guaranteed by state constitutions. But many state courts, probably most, have rejected such challenges. And federal courts overwhelmingly maintain that the rights guarantees of the Federal Constitution set no meaningful limits on pro-defendant tort reforms. In their view, federal rights require only that the reform measure in question serves some public policy goal—a test that is impossible to flunk. (For example, the car manufacturer immunity law posited above would easily pass because the law might bolster or attract industry.) The vast majority of law professors, even "liberal" ones, overwhelmingly share the view of the federal bench.

My own judgment is that the conventional wisdom about the Federal Constitution is wrong—not 180 degrees wrong but wrong nonetheless. States enjoy considerable leeway to modify their tort law. But they must do more than just refrain from enacting utterly pointless reforms. Courts faced with federal constitutional challenges to defendant-friendly tort reform laws are entitled to (and ought to) consider (1) the type of injury to which the tort being reformed responds (e.g., bodily harm, emotional distress, loss of economic expectancy) and the type of wrongful conduct it enjoins (e.g., intentional, reckless or careless conduct); (2) the burden that the challenged reform places on victims who would otherwise be able to invoke the tort law; and (3) the justifications for the reform offered by the legislature. Thus, a law that, in the name of modest cost savings to the public, out-and-out bars suit by a person who suffers a physical injury as the result of conscious or reckless mistreatment by another should be treated as highly suspect. By contrast, a law that imposes a heightened burden of proof on tort claims alleging careless interferences with one's ability to earn future profits, and that is justified as necessary to fend off speculative claims, should almost certainly be upheld. My supposition is that, even when courts engage in this sort of inquiry, they will likely validate most standard tort reform measures. But they will be justified in striking down some laws, including my imagined car manufacturer immunity statute.

Why should a federal court care about what kind of tort law a state enacts? The immediate answer lies in the first section of the Fourteenth Amendment, which specifies that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." The language of this guarantee is notoriously vague. Yet, while there may be substantial doubt about whether it encompasses rights such as the right to privacy, there is little doubt that it was meant to ensure access to law of the sort traditionally provided by common law courts, including a right to law that enables victims to redress wrongs done to them by others. This right imposes on each state a duty to provide its citizens with tort law. And this duty, in turn, places an onus on states either to provide adequate tort law or to justify their failure to provide it.

The historical evidence supporting recognition of this federal right, as well as the legislative duty that corresponds to it, is impressive. English jurists influential with the Founders, including Blackstone and Coke, treated it as an integral part of England's unwritten constitution. A majority of the original 13 states identified the right to a law of redress as a basic right in constitutional documents. Although such a right was not included in the Federal Constitution as initially ratified, this omission owes to the fact that the document, particularly its Bill of Rights, was primarily designed to constrain the new federal government, not state governments. (Few at the time supposed that Congress would enact ordinary tort law.) After the Civil War, proponents of the Fourteenth Amendment explicitly defended the Privileges or Immunities Clause as a necessary corrective to Southern states' denial to slaves of access to the law of property, contract and tort. An unbroken line of U.S. Supreme Court cases from about 1870 to 1925 recognized and enforced the right to a law for the redress of wrongs as one aspect of the Amendment's guarantee of "due process of law." And even with the ascendance of the prevailing "hands-off" approach—which emerged as part of the understandable but hyperbolic New Deal-era attack on overly aggressive judicial review—an array of modern doctrines continue to attest to a federal constitutional norm entitling citizens to access to a law of redress.

In short, anyone who takes history seriously will find it difficult to disavow the existence of a federal right of victim access to what we today know as tort law, a corresponding duty on states to provide such law, and a corresponding power in the courts to consider whether certain forms of legislation so undermine tort law, with so little justification, as to amount to a breach of that duty. The contours of the right to a law for the redress of wrongs will have to be articulated by the courts, but its recognition has broader implications for how we think about tort law and constitutional law. Why have states always supplied a body of law that enables one person to sue another for wrongs? Law professors today tend to suppose that tort law functions as a disguised form of safety regulation (one that deters unsafe conduct with the threat of liability), or a disguised form of localized disaster relief (one that provides compensation to injured victims). Attending to tort law's place within our constitutional order helps us to see that these accounts are misguided. Access to tort law has been constitutionally guaranteed in part because it does something that safety regulation and disaster relief schemes do not: It identifies duties not to injure that citizens owe to one another, and, at least in principle, it arms each beneficiary of such a duty with the power to demand redress from one who has breached it.

As for constitutional law, let me end with an observation prompted by the death this year of Chief Justice William Rehnquist. It has been commonplace to observe that his most important juristic legacy concerns the rebirth of "states rights"—the idea that states are sovereign entities within our political system and therefore enjoy certain exclusive powers (e.g., to regulate local matters) and privileges (e.g., the privilege not to be subjected to suit in federal courts). Politicians, lawyers, and academics have criticized this development for inappropriately shrinking the power of the federal government. Attention to the right to a law of redress helps to isolate a different problem with the new federalism, namely, its one-sidedness. Many eighteenth- and nineteenth-century jurists probably did envision a scheme that granted more power to the states and less to the federal government than we do today. But they also tended to suppose that this grant of authority came with obligations, including the duty to provide bodies of law such as contract law, property law, family law, and tort law. Contemporary federalism deviates from its earlier incarnation precisely because it grants powers without responsibilities, and thereby invites irresponsible tort reform.

—John C. P. Goldberg is Associate Dean for Research and Professor, Vanderbilt Law School. He is currently writing a book on tort law for Oxford University Press (with Professor Benjamin Zipursky), as well as several articles on tort history and theory.