The constitutional status of tort law: due process and the right to a law for the redress of wrongs.

• Author: Goldberg, John C.P.

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. (13) To impose any harder-look review would be to ignore the counsel of Munn v. Illinois (quoted above) that individuals lack a vested interest in mere common law rules. Stricter scrutiny, these judges worry, would resurrect Lochner and its much-maligned constitutionalization of the common law. (14)

Contrary to the views expressed by these and other courts, this Article argues for recognition of a right, grounded in the Fourteenth Amendment's Due Process Clause, to a body of law that empowers individuals to seek redress against persons who have wronged them. This right, in turn, generates the prima facie duty described in Missouri Pacific Railway Co. v. Humes (also quoted above): the duty of each state to provide a law for the redress of private wrongs. (15) Recognition of this right need not entail the federalization of tort law, or even require that tort law remain a part of our legal system. Instead, this right can and should be judicially enforced by establishing meaningful but capacious limits on the ways in which, and the reasons for which, legislatures may undertake plaintiff-unfriendly tort reform. (16)

In Parts I and II, I demonstrate that the right to a law of redress has deep roots in Anglo-American law. The former focuses on influential English sources that articulate the idea of a law for the redress of private wrongs and confer on it fundamental significance. The latter discusses the reception of the right in the Founding era and the antebellum period and offers evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was likely meant to guarantee the right. After discussing late-nineteenth-century U.S. Supreme Court decisions that locate the right in the Due Process Clause, Part II also reviews the emergence of the now-prevalent rational basis paradigm in the late 1920s.

In Part III, I argue for judicial enforcement of the right to a law for the redress of private wrongs via guidelines for decision (17) that are more robust than the rational basis test. First, I identify modern Supreme Court decisions that are part of a broader recasting of the New Deal revolution in terms less rights-and court-skeptical than those articulated by first-generation progressive critics of substantive due process. I also deflect doctrinal objections to the idea that individuals enjoy an affirmative right to the provision of a particular body of law. In doing so, I identify a distinct branch of due process analysis that, borrowing from Laurence Tribe, I dub "structural due process." (18)

Second, I explain why, notwithstanding the dominant tendency among modern scholars to treat tort law as an instrument for attaining public goals such as loss-spreading or efficient precaution-taking, it is still best understood as a law of redress. I also describe how a redress conception of tort differs from corrective-justice and day-in-court conceptions and why a law of redress has a unique and important role to play in our legal system.

Third, I develop and apply a set of guidelines for judicial review that will permit courts to assess more intelligently the constitutionality of particular tort reforms. Under these guidelines, a court should (1) consider the type of interest protected by the tort at issue and the type of wrongdoing that the tort identifies and enjoins; (2) gauge the extent to which the reform in question interferes with the victim's ability to respond to the wrong; and (3) assess the legislative justification(s) for the reform.

The claims in this Article run against the grain of conventional academic wisdom. As a result, they necessitate a two-front campaign. To a skeptical audience of constitutional scholars, I must make the case for recognition of an affirmative constitutional right (albeit of a special sort), as well as for a holistic conception of the Constitution that treats private law as integrally connected to public law. To a skeptical audience of tort scholars, I must establish that modern tort law is properly understood as a law of wrongs and redress.

The position I advocate here also does not mesh neatly with the views of the camps currently waging war over tort law. If sound, it offers modest support to those eager to ward off plaintiff-unfriendly tort reforms. However, it does not justify routine judicial nullification. It also comes with baggage that many in the pro-plaintiff camp will find intolerable-namely the idea that tort law merits meaningful judicial protection against legislation only insofar as it operates as a law of redress. If tort doctrines are conceived as a means by which government indirectly punishes or deters wrongdoers on behalf of the public interest, my argument gains no purchase. (19) For their part, tort reform advocates will be pleased to see that even an unconventionally robust conception of due process leaves legislatures with substantial leeway. But they will be displeased with the rejection of the idea that tort reform is a domain of plenary power. A court applying the guidelines developed here could reasonably strike down a provision such as the Virginia cap, even though many less irresponsible tort reforms will withstand scrutiny.

In any event, my argument has implications beyond the extreme case of judicial nullification. For one thing, it identifies a notion of due process that might help capture the content of other rights that do not fit within conventional categories. For another, it suggests that legislatures operate under certain affirmative duties, including a duty to provide bodies of law that are integral to liberal-constitutional government.

1. ENGLISH PROVENANCE

   One can trace the idea that individuals enjoy a right to a law of redress for private wrongs back to the work of influential seventeenth- and eighteenth-century English jurists, including Coke, Hale, Locke, and Blackstone. This Part briefly explicates their views.

   1. Common Law Theory, Courts, and the Dispensing Power (20)

      Common law political and legal theory was developed in the seventeenth century by lawyers such as Coke, Selden, and Hale in opposition to absolutist theories proposed by the Stuart Kings and their supporters. For present purposes, the significance of common law theory is twofold. First, it provides an early version of structural constitutionalism in Anglo-American thought--the idea that fundamental law establishing (and regulating the...