What Is a Tort Claim?: An Interpretation of Contemporary Tort Reform

One of the most common questions raised on the first day of torts class is, "What is a tort?" On their first day of law school, students falter until, eventually, it emerges that a tort is a civil wrong not arising out of contract. This almost completely circular definition is not enlightening, and that is part of the lesson. Unless you already know what constitutes a civil wrong, the definition is useless. And once you know what constitutes a civil wrong, the definition is unnecessary. In this Essay I shall explore the changing character of the civil wrongs that are governed by "accident law"-negligence and strict liability for personal injury-by looking at the implications of recently proposed and enacted tort reforms for our conception of the nature of a tort claim in this field.

In the last ten years, both proposed and actually adopted accident law reforms have  proliferated. The scope and magnitude of these reforms are unparalleled in the history of tort law. They have come from the left, the center, and the right; they have involved medical, products, environmental, and other forms of liability; and they run the conceptual gamut from tinkering with tort law doctrine, to imposing liability for creating the risk of harm, to wholesale substitution of no-fault compensation schemes for tort liability. Both academic analysis and partisan debate over the wisdom and practicality of these reforms has been and continues to be intense. In short, tort law is in considerable turmoil and there is no end in sight.

It would be a mistake to try to find a single central message in all of this analysis, debate, and reform, for the subject is not monolithic. Some proposals and analyses have been based on the assertion of principle, some on pragmatic judgments about the most workable mix of tort law, regulation, and insurance, and some have been transparently self-serving. Nonetheless, it has been common to divide contemporary tort reform into two categories: reforms that would increase the scope of tort liability and reforms that would decrease it. This is obviously a useful classification, for it captures what is important to those who are immediately affected: whether a reform produces more or less liability, more or less compensation. This concern with whether plaintiffs or defendants gain an immediate benefit from a reform, however, obscures something else that is beginning to happen, and that I think will continue to happen in contemporary tort law.