Tort Law for Federalists (And the Rest of US): Private Law in Disguise‪.‬

The question posed for this panel reads as follows: Should tort law be a form of public regulatory law? My answer is no. What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute that there are certain respects in which tort law is public. For one thing it is law, provided by government--no service, no sheriff, no tort law. For another, its operation can have widespread effects--a tort suit can change how cars are designed and how health care is delivered, for example. Finally, through its day-to-day operation, tort law undoubtedly promotes public objectives including deterrence of risky or otherwise undesirable conduct, maintenance of social cohesion, vindication of individual rights, affirmation of the equality of persons under law, and reinforcement of the ideal of limited government. (1) But now consider the following question: What, in the first instance, does tort law promise to do that warrants retaining it as a distinctive facet of our law? (Or: What is it about tort law that renders it capable of delivering goods such as the ones just catalogued?) Because of tort law's unique features--plaintiff-initiated complaints, the right to a jury trial, litigation and adjudication turning on rules and concepts designed to help determine whether a person can be held responsible for having injured another, etc.--its best justification is that, unlike all the other political and legal institutions we have for dealing with antisocial conduct and injuries (administrative regulation, criminal law, public welfare law, private insurance, bankruptcy, contract, etc.), it provides a means by which those who have been wronged can seek redress against those who have wronged them. By contrast, the tort system is not well designed to function as a form of disaster relief for injury victims because of its high transaction costs and its tendency to produce feast-or-famine compensation. It is also not well equipped to provide public safety regulation because of, among other things, judges' and jurors' lack of agenda control, their limited access to information, and their relative lack of expertise and accountability. In this sense, I maintain, tort law is not defensible as public regulatory law.