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The Inevitability of Tort Reform, 26 Valparaiso L. Rev. 701 (1992)


This Symposium convenes at an important moment in the history of modern tort reform. The helpful legislation in many states that resulted from vigorous efforts to reform the law during the late-1980s is now reaching the level of constitutional review. The academic efforts to reexamine the law—which I shall describe in more detail below—appears to be beginning to evidence demonstrable effects on judges and perhaps juries as the expansive trend toward extension of the law subsides. At the same time, the road to remaining reform remains difficult. A prominent American Law Institute Report group that, after years of study, recommended only modest changes in the law, has encountered fierce opposition. Panglossian celebrations of the vague standards of our modem law of expanded liability still appear. And there are dangerous efforts to cement in a revised Restatement a law now in extraordinary flux.

Despite present uncertainty, however, I believe that the serious and systematic reform of modem tort law is inevitable. In order to appreciate the forces that will generate reform, it is important to understand that modem tort law comprises more than a set of individual rules or propositions, it constitutes a "regime" or perhaps better a "culture." Indeed, I would characterize modem tort law today as comprising what I will call the "culture" of enterprise liability. In its simplest form, enterprise liability is the concept that enterprises or activities ought to be responsible for all of the costs that they generate, especially injury costs. But enterprise liability is more than a single idea. It comprises a "culture" with its own cultural foundations and cultural icons, which I will describe in more detail below.

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