Tracy A. Thomas


This article identifies another counterbalancing power that checks the legislative ability to restrict tort remedies through tort reform: the due process clauses of both state and federal constitutions. Pursuing this uncharted line of inquiry, this article argues that due process guarantees provide a restraint on the tort remedy stripping provisions that deny plaintiffs their fundamental right to a meaningful remedy...Pulling together the disparate strands of legal rules in existing case law, the article develops a cohesive theory of due process protection for the right to an adequate remedy. State court decisions invalidating tort reform remedy restrictions appear analytically scattered and based upon seemingly narrow doctrinal rules of “quid pro quo,” “due course of law,” or access to the courts. However, upon closer consideration, these cases reveal a common theoretical foundation emanating from due process. When these decisions are compared to U.S. Supreme Court decisions spanning the twentieth century, the right to an adequate and meaningful judicial remedy emerges even more clearly. Locating this due process requirement of an adequate remedy significantly alters the way in which courts currently assess the legality of tort reform legislation. This heightened standard does not necessarily sound the death knell for tort reform, but it does demand a more substantial basis for restricting remedies, and averts the political obfuscation of the significant remedial issues dominating tort reform today.

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