ARTICLES HAVE RECENTLY APPEARED IN THE MEDIA declaring that conservative business interests have triumphed over tort lawyers in the tort reform wars. This is palpable nonsense. True, comprehensive tort reform legislation has been enacted in many key states, business interests have gained victories in state supreme court races in Ohio, Illinois, Mississippi, Michigan, and Texas – without which their legislative achievements would have been nullified – and Congress passed the Class Action Fairness Act. Although business interests achieved these highly visible victories, tort lawyers continue to expand the scope of liability of the tort system in other ways.

Perhaps the greatest expansion has resulted from tort lawyers' successful efforts to redefine “injury.” To bring a suit in tort, a plaintiff must show that a defendant has injured him and that this conduct was wrongful. Tort lawyers have been trying to replace the requirement of “injury” (as a layperson would use the term and as courts have traditionally required for the filing of a tort claim) with the more pliable concept of the “legally cognizable claim.” In modern tort litigation, actual injury is no longer a required component of a legally cognizable claim. Freed from the restraint of showing actual injury, the number of potential claims is limited only by the capital costs of recruiting claimants, the creativity of tort lawyers, and the complicity of courts.