Beyond the Common Law: Tort Reform and Tort Alternatives
Over the past century, tort law has been under sustained attack. Using a broad mix of case law, case studies, and scholarly analysis, this seminar will interrogate those attacks--including their historical roots, their theoretical justifications, and their practical effects. We will first study "replacement reforms"--attempts to jettison the common law in favor of alternative compensation mechanisms, including workers' compensation, auto no-fault, the September 11th Victim Compensation Fund, and the Vaccine Injury Compensation Program, housed within the U.S. Court of Claims. Second, we will study modern tort reform initiatives, often dubbed "discouragement reforms," which have chiseled away at damages and chilled personal injury victims' incentives and capacity to seek relief. Finally, we will study the United States Supreme Court's own tort reform activity, including recent jurisprudence limiting punitive damages, preferencing arbitration, and granting broad preemptive effect to agency actions. Through this analysis, students will develop a deeper and richer understanding of the tort system, its contemporary operation and excesses, and the uneasy but undeniably important place tort law--and civil litigation more generally--occupies in contemporary American society. Special Instructions: Grades will be based on class attendance, class participation, and either several short reflection papers (section (01)) or an independent research paper (section (02)). After the term begins, students accepted into the course can transfer from section (01) into section (02), which meets the R requirement, with consent of the instructor. Students taking the course for R credit can take the course for either 2 or 3 units, depending on paper length. Elements used in grading: Class participation, class attendance, reflection papers or research paper. Early drop deadline.