Tort experiments in the laboratories of democracy.

• Author: Klass, Alexandra B.

ABSTRACT

This Article considers the broad range of "tort experiments" states have undertaken in recent years, as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, while states have limited tort rights and remedies in the products liability and personal injury areas in recent years, they have at the same time increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, Congress has eliminated state tort law entirely in targeted areas without replacing it with corresponding federal remedies. The Supreme Court has likewise cut back on the ability of states to provide their citizens with tort rights and remedies through the preemption doctrine and due process limits on punitive damages.

This Article explores these trends in the states, Congress, and the Supreme Court and concludes that part of the problem in federal-state relations in the area of tort law is that the Supreme Court has shifted from a private law to a public law conception of tort that does not give sufficient attention to the important private law goals tort law still serves. This has allowed the Court to displace more easily state tort law without considering the need for any substitute federal remedy. Once the private law aspects of torts are recognized, it becomes easier to identify and value the role tort law plays in our federalist system.

TABLE OF CONTENTS INTRODUCTION I. TORT LAW AND TORT THEORY II. TORT "EXPERIMENTS" A. Tort Contractions: Traditional State "Tort Reform" 1. Statutory Tort Reform 2. Tort Reform in the Courts B. Tort Expansions: The Creation of New Rights and Remedies in Consumer Protection, Privacy, Publicity, and Environmental Protection Cases 1. Tort Expansions in Consumer Protection Laws 2. Tort Expansions in Privacy and Publicity Rights 3. Tort Expansions in Environmental Protection C. Conclusion III. CONGRESSIONAL RESPONSES TO STATE TORT EXPERIMENTS IV. THE SUPREME COURT, FEDERALISM, AND TORT LAW A. The Supreme Court's Federalism Jurisprudence B. The Supremacy Clause and Preemption C. Limiting State Punitive Damage Awards Under the Due Process Clause V. WHO NEEDS TORT LAW?: FEDERALISM AND STATE TORT EXPERIMENTS A. "Public" Tort Law and the Supreme Court B. Where To Go From Here: Why Tort Law? CONCLUSION INTRODUCTION

This Article considers tort "experiments" in the states and the increasingly complicated and dynamic relationship between state legislatures, Congress, and state and federal courts in the area of tort law. The idea of the states engaging in "experiments" is, of course, not new. As Justice Brandeis stated in 1932, one of the basic values of our federalist system of government is that it encourages innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve asa laboratory; and try novel social and economic experiments without risk to the rest of the country." (1)

In recent years, states have engaged in significant "experiments" in the area of tort law. These experiments take many forms. First, state legislative "tort reform" efforts have continued unabated for over two decades as states enact increasing numbers of statutes to place limits on compensatory and punitive damages, create regulatory compliance defenses for consumer claims against drug manufacturers, impose new statutes of limitation and statutes of repose for products liability and other tort claims, place additional limits on claims for medical malpractice, and otherwise supplant historic common law tort developments in these areas. (2) State tort experiments, however, are not limited to tort "reform" that restricts common law rights and remedies. Indeed, at the same time states are decreasing the rights of their citizens to bring certain types of claims for personal injury against drug manufacturers, product manufacturers, doctors, and others, they are also increasing the rights of their citizens to bring other types of tort claims in targeted areas such as consumer fraud, privacy, publicity, and environmental protection. Likewise, in recent years, state attorneys general and local governments have been reviving the common law tort of public nuisance in efforts to obtain injunctive relief and damages for harm caused by lead paint, gun violence, greenhouse gas emissions, and mortgage foreclosures. (3)

Such a variety of activity in the area of state tort law is not surprising. Along with public health and safety, tort law is seen as a classic area of "traditional state concern" even as Congress and federal agencies play an ever-increasing role in regulating drugs, consumer products, the environment, and many other substantive areas that frequently are the subject of state tort law claims. (4) The continuing ability of states to engage in tort experiments has been called into question, however, by developments in Congress and the Supreme Court. While Congress has not enacted comprehensive federal tort reform, in recent years it has enacted targeted legislation to immunize certain industries, most recently the gun industry, from state lawsuits without any alternative federal remedy, as had been done with prior legislation to protect vaccine manufacturers, the nuclear power industry, and other industries. (5)

Likewise, the Supreme Court appears to have excluded state tort law from its "federalism revolution" that began in the 1990s. (6) Indeed, at the same time the Court was cutting back on Congress's authority under the Commerce Clause in the name of states' rights, it began to limit significantly the ability of states to provide tort rights and remedies for its citizens by preempting common law and statutory claims for damages associated with drugs, medical devices, and consumer products under the Supremacy Clause, and limiting punitive damage awards under the Due Process Clause. (7)

This Article attempts to shed new light on the federal-state relationship in the area of tort law through a broad analysis of state tort "experiments" that include legislative and common law efforts to both limit and expand tort rights and remedies. In doing so, it concludes first that both Congress and the Supreme Court have exhibited a growing hostility to state tort law in recent years that stands in contrast to the rhetoric surrounding states' rights that exists in these bodies' statements and actions in other areas of law. Second, this Article concludes that despite the efforts of tort theorists to classify tort law as either public law or private law, state experiments with tort law demonstrate that states use tort law to provide their citizens both with the right to obtain redress for private wrongs and also to achieve public regulatory goals. The variation in tort experiments shows that some new torts may fall more on the public law side than the private law side, and vice-versa, but that tort law today is not a monolith that can be analyzed exclusively as public law or private law.

Part I begins with a brief background on the law of torts as well as a short summary of currents trends in tort theory today. At the present time, there are two main theoretical approaches to tort law. The first and dominant approach sees tort law as a branch of public regulatory law intended to serve state interests of deterring undesirable conduct, compensating victims of wrongdoing, and spreading societal losses. (8) The second approach views tort law as private law rather than public regulatory law. (9) Under this private law approach, tort law is a form of corrective justice or, as formulated by John Goldberg and Benjamin Zipursky, the means by which a state provides its citizens with the right to obtain redress for private wrongs. (10)

Part II then analyzes a wide spectrum of recent state legislative and judicial actions to modify tort law not only to decrease the scope of tort law, such as traditional tort reform, but also to increase it, particularly in areas of consumer rights, privacy, publicity, and environmental protection. This Part also discusses the extent to which states use these tort "experiments" to achieve public law and private law goals.

Part III considers congressional responses to state tort experiments which, in the past, generally resulted in replacing state tort law with a federal regulatory framework or compensatory remedy, but now more often result in eliminating state tort law rights and remedies altogether without creating any substitute federal framework or remedy.

Part IV considers the Supreme Court's review of state tort law. This analysis includes recent decisions involving Congress's authority to regulate under the Commerce Clause, federal preemption doctrine, and due process limits on punitive damages, all of which directly affect the ability of states to continue to experiment with statutory tort law as well as the common law. Through this analysis, Part IV shows that the Supreme Court has almost completely excluded state tort law from its rhetoric on states' rights and federalism and explores the ways in which that has occurred.

Finally, Part V returns to tort theory in an effort to provide some additional insights on the federal-state relationship in tort law today. This Part first shows how the Supreme Court has failed to recognize the private law aspects of tort in its recent decisions, which has allowed it to displace more easily tort law under doctrines of preemption and due process. It then discusses the inherent values of tort law and argues that the Court should more fully recognize both the public and private aspects of tort law in its preemption and punitive damages cases. This recognition should result in less preemption of state law in cases in which Congress has not expressed a clear intent to preempt state tort law. It should also result in more deference to state juries and courts in punitive damages cases...