• cite constitutional authority before federalizing tort actions traditionally reserved to the states, • respect the laboratory of tort law provided by the 50 states, • expand the jurisdiction of the federal courts over interstate class actions, • pass the “Right to Choose Your Lawyer Act” for class actions in federal court, and • limit the rights of government plaintiffs suing in federal court on behalf of private parties.
A funny thing happened to tort law on the way to the new millennium. For centuries tort liability was a vital and well-functioning component of our common law. Suddenly, for all but plaintiffs' lawyers, tort law is like the Internal Revenue Service: almost no one respects it, and just about everyone believes it should be “fixed.” Too often, today's tort law produces huge awards without fault, without causation, even without real damages. Modern tort law discourages personal responsibility, yet the encouragement of responsible behavior was historically one of its principal attributes. Because individuals are able to use modern tort law to shift the costs of their behavior to others, we have seen an explosion of litigation, boundless punitive damage awards, and unjustified class actions and government-sponsored litigation. Tort law is being transformed into the crassest kind of public legislation—the transfer to political “losers” of the costs of supporting the lifestyles of political “winners.” The result is increased costs of everything for everybody.
In a free society, one person's obligation to another person can arise under contract or tort. A contract is an agreement under which someone willfully exchanges some aspect of liberty for goods or services that are