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

Article excerpt

INTRODUCTION

I. ENGLISH PROVENANCE

   A. Common Law Theory, Courts, and the Dispensing Power
        1. The Ancient Constitution
        2. Implications for the Right to a Law of Redress
   B. Locke on the Inalienability of the Right To Redress Injuries
   C. Blackstone's Synthesis: Private Wrongs and the English
      Constitution
        1. Rights and Wrongs
        2. The Right to Law for the Redress of Private Wrongs:
           Blackstone's Constitution

II. RECOGNITION OF THE RIGHT TO A LAW OF REDRESS IN AMERICAN
    CONSTITUTIONAL LAW

    A. 1776-1875: Reception
         1. The Founding Era
         2. Section 1 of the Fourteenth Amendment
    B. 1875-1920: Due Process as Ceiling and Floor
         1. Railroads and Ships
         2. Workers' Compensation: Ires and White
    C. 1920-1976: Recognition and Retreat
         1. Truax v. Corrigan and the Arrival of Rational Basis Review
         2. Rights-Skepticism, Court-Skepticism, and Wrongs-Skepticism

III. THE CONSTITUTIONAL STATUS OF TORT LAW AS A LAW FOR THE
     REDRESS OF PRIVATE WRONGS
     A. Due Process Revisited
          1. Skepticism's Skeptics
          2. Doctrinal Sightings
          3. Affirmative Rights, Rights to Law, and
             Structural Due Process
     B. Tort Law Revisited
        1. A Law of Wrongs
        2. A Law of Private Wrongs: Relational Duties and Injuries
        3. A Law for the Redress of Private Wrongs
        4. Torts, Rights, and Duties
     C. Guidelines for Enforcing the Right to a Law of Redress
        1. Possible Frameworks
        2. Applying the Guidelines
             a. Workers' Compensation
             b. Peaceful Picketing
             c. Anti-Heartbalm Statutes
             d. Trespasses and Takings
             e. Damage Caps
     D. Implications
        1. Defendants' Due Process Rights
        2. Federal Tort Reform
        3. Structural Due Process
        4. Constitutional v. Constitutive:
           Eliminating the Law of Redress of Wrongs

CONCLUSION

   A person has no property, no vested interest, in any rule of the
   common law. (1)

   It is the duty of every State to provide, in the administration
   of justice, for the redress of private wrongs.... (2)

INTRODUCTION

Tort reform legislation abounds. Mostly it is issuing from state legislatures, although Congress has also joined in. (3) Typical reforms burden plaintiffs by raising new procedural and evidentiary hurdles, narrowing grounds for liability, and limiting damages. (4) Plaintiffs have raised numerous constitutional challenges to these laws, with mixed results. (5) One article counts 82 decisions issued by courts in 26 states between 1983 and 200l that have struck down tort reform measures, usually on state constitutional grounds. (6) However, the article also identifies 140 decisions from courts in 45 states and the District of Columbia upholding reforms in this same period. (7) Lower federal courts appear to be largely unreceptive to federal constitutional challenges, (8) and the Supreme Court has not ruled directly on the subject in recent years. (9)

State and federal decisions upholding a Virginia statute capping compensatory damages in malpractice actions illustrate the predominant approach. (10) Under the statute, if a patient were to prove that a doctor's malpractice proximately caused her injuries resulting in lifetime medical expenses of $10 million (this apart from any pain and suffering), she would recover less than $2 million. (11) Claimants who stood to receive awards above the cap challenged the statute, but the courts adopted a deferential posture toward the legislature. (12) In particular, each decision reasons that, because the damage cap is a piece of "social or economic" legislation that does not single out a discrete minority or burden a recognized fundamental right, it should be subject only to the rational basis versions of equal protection and due process analysis. …