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New Federalism Jurisprudence and National Tort Reform
Betsy Grey
59 Wash. & Lee L. Rev. 475 (2002)
Open Access  |  Library Access


Tort law in America has long been in the middle of a philosophical tug of war between exponents of federalization and protectors of unique state interests. On one hand, ever since the days of Swift v. Tyson, proponents of uniformity and protection of commercial interests have advocated the federalization of tort law. Numerous bills that recently have been passed to federalize important aspects of tort law reflect the arguments of these proponents. On the other hand, there is a rich history in this country, with its roots in the Tenth Amendment and epitomized in the last century by Erie Railroad v. Tompkins, that seeks to protect the rights of states to govern in matters of local concern.

This Article examines the competing considerations that will govern the constitutionality of modern day tort reform proposals. Part II discusses the Swift-Erie debate that raised many of the same issues as today's debate over national tort reform. Part III provides a general overview of our system of federalism and the Supreme Court's renewed solicitude for state sovereignty. Part IV explores the values of maintaining a federal and state system. Part V examines these values in the context of tort law. Part VI discusses the foundations of tort law as an area traditionally regulated by the states, along with the paradigms underlying the philosophic understandings of tort law. Finally, Part VII applies the paradigms to federal tort law, developing a sliding scale model for use in analyzing the constitutionally of federal tort reform legislation.

Keywords: tort reform, federalism, Commerce Clause
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