The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs
115 Yale L.J. 524 (2005)
In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional duty to provide that law? Since the New Deal era, conventional wisdom has held that individuals do not possess such a right, and consequently, government bears no such duty. In this view, it is a matter of unfettered legislative discretion--"whim"--whether or how to provide a law of redress. This view is wrongheaded. To be clear: I do not argue that individuals have a property-like interest in a particular corpus of tort rules. The law of tort is always capable of improvement, and legislatures have an obligation and the requisite authority to undertake such improvements. Nonetheless, I do argue that tort law, understood as a law for the redress of private wrongs, forms part of the basic structure of our government. And though the Constitution does not confer on any particular individual a right to a specific version of tort rules, all American citizens have a right to a body of law for the redress of private wrongs that generates meaningful and judicially enforceable limits on tort reform legislation.