Friday, April 25, 2008

Prof. Roederer Publishes Article on Tort Reform

Professor Christopher J. Roederer of the Florida Coastal School of Law recently published an article entitled Democracy and Tort Law in America: The Counter-Revolution, 110 W. Va. L. Rev. 647 (2008). Here is an excerpt from the Introduction:

Th[e] gap between the “haves” and “have nots” cuts across both socioeconomic aspects of life (education, jobs, income, mobility) and civil and political aspects of life (the ability to participate in civic and political life, through voting, volunteering, protesting, donating, etc.). This gap skews both the input into those who are elected to represent the people and the output, or the responsiveness, of those elected to serve the needs and preferences of the people. 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 the “have-nots” in America. Just as democratic progress fostered progressive tort reform, democratic decay over the last few decades has fostered regressive changes in the law of torts. Just as progressive tort reform in turn helped to consolidate democracy, the regressive tort reform movement has helped further entrench both economic and political inequality, and the further erosion of democracy.

Part II of this Article provides an introduction to the history of democracy and tort reform in the United States. Although the seeds of democracy and democratic tort reform were sown well before America's founding, as this section demonstrates, neither began to blossom until after the Second World War. Post World War II Democratic progress both led to, and was consolidated by, progressive developments in tort law during the same period. Part III draws on recent literature in the field of political science detailing the extent of U.S. economic inequality, while Part IV draws on that literature to show how economic inequality is bound up with political inequality and the decay of American democracy. As Part V illustrates, interventions by the courts and legislators in the area of torts follows this pattern. This can be seen by the Supreme Court's counter-democratic interventions, as well as the bulk of tort “reform” efforts since the 1980s.


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