Tort Experiments in the Laboratories of Democracy

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 federalstate 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. * Associate Professor of Law, University of Minnesota Law School. I received valuable comments on earlier versions of this Article from Allan Erbsen, Daniel Farber, Barry Feld, Robert Glicksman, Brad Karkkainen, Michael Madison, William McGeveran, J.B. Ruh], Daniel Schwarcz, and Catherine Sharkey. I also benefited greatly from comments received at faculty workshops at the University of Minnesota Law School, Emory University School of Law, the University of Pittsburgh School of Law, and Notre Dame Law School. Sara Bergan provided excellent research assistance.