Wednesday, November 8, 2023
Douglas Kysar has posted to SSRN The Consitutional Claim to Individuation in Tort--A Tale of Two Centuries, Part 2. The abstract provides:
This article—drafted to honor Professor Aaron Twerski on the occasion of his festschrift at Brooklyn Law School—draws inspiration from his classic 1989 article on market share liability. In that article, Professor Twerski observed that doctrinal confusions in market share liability arose from judges who “had their feet firmly planted in two different centuries—one foot in the nineteenth century and the other in the twenty-first century.” This article takes inspiration from Twerski’s “two centuries” metaphor to examine the rise of constitutional objections by defendants to certain doctrinal innovations that attempt to adapt tort law to modern ways of causing, identifying, and redressing harm. Many of these objections can be understood as claims that defendants are constitutionally entitled to a body of tort law that remains anchored in the nineteenth century, notwithstanding some judges’ desire to drag tort into a more modern, regulatory modus operandi. For reasons stemming from tort law’s distinctive role in our classical liberal system of government, the article argues that courts should decline defendants’ invitation to lock tort law in anachronistic amber.