Tort as Democracy: Lessons from the Food Wars

This Article develops alternative emerging theories regarding the function of tort in American civil society. Often, scholars and policymakers evaluate the tort system in terms of compensation, loss allocation, and risk management. This focus overlooks an important modern function of tort; in the context of the modern administrative state, tort is a vital player in the democratic deliberative process. Tort suits bring forth new ideas, force fact-finding, and increase communication amongst public and private institutional actors to develop sound and legitimate law and policy.

Perhaps nowhere is this more obvious today than with the current boom of food litigation. Lawsuits over whether “evaporated cane juice” should be labeled as sugar, McDonald’s can use beef fat in french fries, or granola bars are actually “all natural” routinely “fail” and face scorn and disparagement as the “next big payday” for former tobacco lawyers. However, independent of whether these cases are settled, dismissed, or brought to trial, these suits alter public discourse. They spurn administrative and legislative bodies into active (or reactive) mode, and push government officials, industry titans, and public opinion to take into account new and conflicting ideas. Ultimately, this Article argues that the success of tort as a system cannot be evaluated purely by its ability to provide material recovery in any given case—or even corrective justice for the individual. Rather, tort litigation can (and does) function as a critical balancing force in the American legal system as a whole.