Tort Law for Federalists(and the Rest of Us): Private Law in disguise John C P. Goldberg Forthcoming, 28 Harv. J. L.& Pub. Policy__(2004) The question posed for this panel reads as follows: "Should Tort Law be a form of Public Regulatory Law?" My answer is"No. What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute that there are certain respects in which tort law is "public. For one thing it is law, provided by government--no service, no sheriff, no tort law. For another, its operation can have widespread effects -a tort suit can change how cars are designed and how health care is delivered, for example. Finally, through its day to-day operation, tort law undoubtedly promotes public objectives including deterrence of risky or otherwise undesirable conduct, maintenance of social cohesion vindication of individual rights, affirmation of the equality of persons under law, and reinforcement of the ideal of limited government. I But now consider the following question: What, in the first instance, does tort law promise to do that warrants retaining it as a distinctive facet of our law?"'(Or: Professor, Vanderbilt Law School. Thanks to Mark Brandon, Rebecca Brown, Don Herzog, Richard Nagareda, Bob Rasmussen, Tony Sebok, and Ben Zipursky for their helpful comments. Remaining errors are my own i See John C. P. Goldberg Benjamin C. Zipursky, Acidents of The Great Society,_ Md. L. Rev.-(2004 (forthcoming)(identifying various political values served by tort law). To say that tort law serves certain values is not to say that each tort case is an occasion for judge and jury to fashion a result that will best serve those values, as opposed to following the rules and principles contained within tort law. Nor is it to say that tort law to promote these values, or that it consistently serves these values better than any onceivable alternative arrangements. Finally, it does not entail denying that tort law can generate socially undesirable consequences, such as litigiousness and waste.3 Tort Law for Federalists (and the Rest of Us): Private Law in Disguise John C. P. Goldberg* Forthcoming, 28 Harv. J. L. & Pub. Policy __ (2004). The question posed for this panel reads as follows: “Should Tort Law be a form of Public Regulatory Law?” My answer is “No.” What I mean by that will become clearer in a moment, but let me offer an immediate set of qualifications. I do not mean to dispute that there are certain respects in which tort law is “public.” For one thing it is law, provided by government -- no service, no sheriff, no tort law. For another, its operation can have widespread effects -- a tort suit can change how cars are designed and how health care is delivered, for example. Finally, through its day￾to-day operation, tort law undoubtedly promotes public objectives including deterrence of risky or otherwise undesirable conduct, maintenance of social cohesion, vindication of individual rights, affirmation of the equality of persons under law, and reinforcement of the ideal of limited government.1 But now consider the following question: What, in the first instance, does tort law promise to do that warrants retaining it as a distinctive facet of our law?” (Or: * Professor, Vanderbilt Law School. Thanks to Mark Brandon, Rebecca Brown, Don Herzog, Richard Nagareda, Bob Rasmussen, Tony Sebok, and Ben Zipursky for their helpful comments. Remaining errors are my own. 1 See John C. P. Goldberg & Benjamin C. Zipursky, Accidents of The Great Society, __ Md. L. Rev. __ (2004) (forthcoming) (identifying various political values served by tort law). To say that tort law serves certain values is not to say that each tort case is an occasion for judge and jury to fashion a result that will best serve those values, as opposed to following the rules and principles contained within tort law. Nor is it to say that tort law always operates so as to promote these values, or that it consistently serves these values better than any conceivable alternative arrangements. Finally, it does not entail denying that tort law can generate socially￾undesirable consequences, such as litigiousness and waste