ROBERT KAGAN'S EMPHASIS OF THE ROLE OF STATE supreme court judges in the tort reform wars is spot on. Lawyers and judges share a mutual interest in expanding the scope of liability of the tort system. By facilitating the expansion of tort liability, judges not only support the interests of lawyers, but also increase their own regulatory role and their ability to impose their policy preferences onto society. This chapter explores the judicial role in the expansion of the tort system through analysis of state supreme court invalidations of tort reform laws and other collaborative efforts of lawyers and judges to expand tort liability.

Nowhere do the bare knuckles of state supreme court judges show through their black robes more plainly than when they invalidate legislative efforts to contract previous judicial expansions of tort liability. These frequent invalidations often violate basic constitutional principles. Unlike the U.S. government, which only has the powers granted to it under the Constitution, state governments have broad general powers, limited only by their state constitutions and the powers they have ceded to the United States. The broadest state power is the police power, which empowers state legislatures to enact legislation to advance the health, safety, morals, and general welfare of the populace. Though common law courts are largely responsible for developing contract, tort, and property law, legislatures have always retained the power to create, modify, or repeal these rules.