Document Type


Publication Date

December 2006


In the recent proliferation of tort reform statutes, the dangerous clause of remedial jurisdiction stripping has sneaked into the law. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions strip courts of all power to award punitive or non-pecuniary damages in excess of legislative limits. Many states have acted to restrict frivolous claims and excessive recoveries by cabining “McTorts” and “runaway juries.” Regardless of the merits of these policy questions, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. By arbitrarily restricting an individual’s right to a meaningful remedy, the tort reform remedy restrictions threaten to dilute common-law rights.

The pretextual use of jurisdiction to restrict remedies has serious implications both within and outside of the tort reform context. The maneuver exceeds the purpose and intent of the legislative power to define and organize the judiciary. Such a violation of the spirit of jurisdictional authority converts the legislature’s power to define the jurisdiction of the courts into a plenary power to regulate, or eviscerate, all remedies and legal rights. This unrestrained legislative power has been challenged in the past as a violation of separation of powers, and legislatures have thus simply circumvented this problem by using their jurisdictional weapon to shackle the judiciary’s ability to act.

However, there is 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. Building upon prior work asserting the fundamentality of the right to a remedy, this article develops the correlative due process protection mandating heightened review of legislation that burdens or denies the remedial right. This constitutional scrutiny is necessary to hold the legislature accountable to constitutional commands and to provide the necessary transparency and respect for the rule of law. 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. Such a heightened standard does not necessarily sound the death knell for tort reform, but it does demand a more substantial basis for restricting remedies, and it averts the political obfuscation of the significant remedial issues dominating tort reform today.

Publication Title

Symposium, Akron Law Review

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