New Directions in Liability Law

By Walter Olson | Go to book overview

Can Washington Repair the
Tort System?

EDMUND W. KITCH

Observers who are distressed by current developments in American tort law find it tempting to look to the federal government for reform. Congress offers a single forum to address the issues and is supported by an elaborate and sophisticated staff. It would seem much easier to persuade Capitol Hill to act than to carry the issue to fifty state legislatures, each with its own idiosyncrasies. But in spite of the urging of those, including some in the Reagan administration's Department of Justice, who seek a national solution to the tort controversy, Congress is not the appropriate arena for reforming tort law. Its proper role is the limited one it has taken in the past: to address particular problems that directly affect the interests of the federal government.

Why is tort law best left to the states? First, most of the issues it deals with have no national implications; they exemplify the "local" issues that the framers of the Constitution intended to leave to the states. With some possible exceptions— chiefly products-liability law—the costs and benefits of any venture in tort liability law fall within the state that pursues it. No national interests intervene. Second, in practice, tort law is entangled with problems of court organization, administration, and procedure, which means that effective federal reform would either have to assign vast duties to federal courts or meddle in the most intimate details of state courts. Third, there is no consensus, expert or otherwise, on what the rules of tort law should be. Tort law is a confusing welter of competing objectives —accident deterrence and loss-shifting, to name the two most prominent examples — whose relative importance varies with the observer and the situation. Finally, individuals and businesses can move their activities in and out of states, and thus provide a nonpolitical check on overly costly choices by state governments, much more easily than they can move in and out of the country in response to errors at the federal level.

The arguments against federal intervention do not apply as strongly to the area of products liability, where states may have an incentive to help their own citizens

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