"Tort Reform" is a hot topic in the U.S. The paper asks whether the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution sets any limits on the ability of Congress and state legislatures to cut back on tort liability.

Contrary to conventional academic wisdom, it finds substantial historical and theoretical support for the idea that such constraints do exist—that legislatures do not have free rein to limit or eliminate liability as they see fit.

The paper uses English and American historical materials to "recover" a way of looking at law and rights that has, to a large extent, been ignored or forgotten by modern lawyers and judges. It then suggests that, by recovering this way of thinking, we can gain insight into how judges and legislators might handle pressing practical questions concerning the reform of malpractice law, products liability law, etc.

Suppose you live in the U.S. and your state legislature announces that, in the interest of promoting economic growth, manufacturers will from now on be immunized from any liability for injuries caused even by carelessly made consumer products.

Even if one were to conclude that this law makes for bad public policy, the question remains as to whether the legislature was acting within its constitutional authority in enacting such a law, or whether the law could be challenged in court for being unconstitutional.

My argument is that a law like this might well be unconstitutional, depending on factors such as the legislative purpose behind the law, the other options open to the legislature to achieve that purpose, and whether the legislature has made any separate provision for dealing with the losses suffered by persons injured by consumer products.

This question caught my eye because a number of state courts have struck down tort reform legislation on state constitutional grounds. Overwhelmingly, legal academics have thought that these decisions are wrong. I wanted to see whether there was some basis for them, which eventually led me to a consideration of the existence of federal constitutional limits, which most law professors think can’t possibly exist.

The biggest problem that I faced was overcoming the prevailing mindset among legal scholars who write about constitutional law and tort law. Inevitably, and appropriately, scholars within a field take the validity of certain claims and propositions for granted (I’m as guilty of this as anyone else); it is very difficult to get oneself (as well as others) to mount credible challenges to these pieces of conventional wisdom.

If I’m right, courts and legislators ought to change how they think about tort reform. The difference would be subtle; certainly it’s not as if tort reform would come to a screaming halt in the legislatures or the courts. But, ideally, reform would proceed more carefully, and with greater respect for the right of victims of wrongs to take advantage of the legal system to seek recourse from those who have wronged them.