The Logic of Legal Remedies and the Relative Weight of Norms: Assessing the Public Interest in the Tort Reform Debate

Part II of this essay examines the need to identify, measure, and compare the interests at stake in any legal contest with rigorous consistency. It also notes the corollary principle of proportionality as a limiting principle that guards against foolish or destructive consistency. Part III explores the natural hierarchy among legal norms and the weight accorded various types of interests that deserve legal protection. Part IV considers the system of measurement presented by the current tort reform movement, exploring the failure of many proponents of tort reform to account for or accommodate the tradition of a more generous and protective measure of damages in tort law as compared with contract law.

It notes the failure of proponents of tort reform to consider the traditional role of tort damages in creating compensation for victims of negligent conduct, preserving physical security of individuals and the public, and creating disincentives against negligent conduct. It also explores the failure of some proponents of tax reform to count the cost to the public interests involved, diluting the principal goals of tort law. Part V concludes that identification of both individual and collective interests and consideration of the fundamental incentives of tort law should be an integral and explicit part of the debate on tort reform.