Democracy and Tort Reform in the U.S.A.


Democracy in the United States of America is in decline. In much the same way that progressive tort reform was made possible by democratic gains since the 1950s, the current tort retrenchment has been made possible by our democratic losses since the 1980s. Just as tort reform in the 1960s and 1970s helped consolidate and protect our democratic gains, the tort “reforms” from the 1980s to the present have helped further consolidate and protect our rising plutocracy. After a brief introduction setting the stage in broad stroke for the argument that follows, part II draws on recent literature in the field of political science detailing the extent of our economic inequality while parts III and IV draw on that literature to show how our economic inequality is bound up with political inequality and the demise of our democracy, both in terms of being heard by those who represent us (part III), and in terms of having a voice to reach those who represent us (part IV). Gross inequality in political voice is bound up with a lack of responsiveness and accountability and this in turn leads to the erosion of government interventions to correct or counterbalance the ever widening gap between the “haves” and “have-nots” in our country. As Part V illustrates, interventions by the courts and legislators in the area of torts follows this model. This is illustrated by counter-democratic interventions by the Supreme Court as well as the bulk of tort reform efforts since the 1980s. Part V, will first briefly address the larger terrain of tort reform (both progressive and regressive) before turning to the role of the Supreme Court in tort reform. The article concludes with some brief comments on recent developments in the area of products liability which may provide a ray sunshine on the otherwise gloomy condition of tort law and democracy in the United States.



Date of this Version

August 2006