Document Type



Forthcoming 2005 in Vol. 38, No. 3 Loyola of Los Angeles Law Review


This article, written for the first annual Access to Justice symposium at Loyola Law School of Los Angeles, addresses the implications of due process for tort reform. In a line of relatively recent cases, the U.S. Supreme Court has held that a tort award of punitive damages must satisfy the procedural and substantive requirements of the Due Process Clause of the U.S. Constitution. So far, constitutional tort-reform has been limited to punitive damages, but such reform is not necessarily limited to this area of tort law. As the article argues, other important tort practices raise the same sort of due process concerns that the Court has relied upon to justify the constitutional tort-reform of punitive damages practice. The Court’s punitive damages jurisprudence may thus provide the foundation for a new type of broad-based tort reform.

Regardless of what one may think about the Court’s foray into tort reform, constitutional tort-reform has desirable characteristics. Rather than addressing the substantive aims of tort liability, constitutional tort-reform is supposed to reduce or eliminate any unreasonable legal uncertainty generated by the tort practice in question. But as the article further argues, the neat distinction between substance and process cannot be attained in practice. Any reform designed to reduce legal uncertainty will depend upon a contestable conception of tort liability, a characteristic of constitutional tort-reform clearly present in the Court’s punitive damage jurisprudence. The Court, though, does not have to reach the correct substantive outcome in order to make constitutional tort-reform desirable. If the Court adopts a reform that depends upon the wrong substantive conception of tort law, the states retain the power to adopt a different substantive objective for the tort practice. Constitutional tort-reform therefore can serve the valuable role of forcing state courts and legislatures to identify more clearly the substantive objectives of tort law, an issue of critical importance that has not been adequately addressed by the reform movements of the last century.

Date of Authorship for this Version

May 2005