"From Hell's Dark Heart, I Stab At Thee!"

The Supreme Court of Texas has stabbed fatally at a tort reform provision intended to insulate a company from liability from its predecessor's action, and in finding that provision unconstitutional, one of the Court's Justices finds inspiration in Star Trek, among other worthy authorities (including Thomas Hobbes). Justice Willett writes in part,

Today's case is not merely about whether chapter 149 singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation. Distilled down, it is also a case about how Texans govern themselves. Delimiting the outer edge of police-power constitutionality has bedeviled Texas courts for over a century. The broader issue of a citizen's relationship with the State has confounded for centuries longer.

 From 1651: "For in a way beset with those that contend on one side for too great Liberty, and on the other side for too much Authority, 'tis hard to passe between the points of both unwounded."

From 1851: "It is much easier to perceive and realize the existence and sources of [the police power] than to mark its boundaries, or prescribe limits to its exercise."

From 1907: The question whether a law can stand as a valid exercise of the police power "may be involved in mists as to what police power means, or where its boundaries may terminate. It has been said that police power is limited to enactments having reference to the comfort, safety, or the welfare of society, and usually it applies to the exigencies involving the public health, safety, or morals."

Gauzy definitions such as these -- and laments over such imprecision -- offer scant comfort in this enterprise. The issue is elemental, but not elementary. Fortunately, we are not entirely without guidance.


Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that "the needs of the many outweigh the needs of the few." Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan),(fn. 21) it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

NB: The text of Footnote 21 is

See STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: "Don't grieve, Admiral. It is logical. The needs of the many outweigh . . ." to which Kirk replies, "the needs of the few."

Other footnotes omitted.


The case is Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (2010), 161-163. It has already gotten attention from the SFWA Blog and Techdirt, back in October when the Court decided the case, and from Constitutional Law Prof Blog in April when the Court formally released the opinion. Says Techdirt, "And so, Spock is now a legal authority on the Texas Constitution. Very logical." Well, not exactly. But interesting.

TV Judges and Tort Reform

Joshua Wilson and Erin Ackerman have published "TV Judges and the Civil Law Narrative" as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

This is a collaborative study examining the relationship between popular reality-based judge television shows, 'tort tales,' and the politics of tort reform. TV judge shows share or approximate many features of the tort tale described by Haltom and McCann in Distorting the Law: Politics, Media, and the Litigation Crisis. The question driving our research is whether these TV Judge shows contribute to tort tales' conservative anti-litigation message or, instead, generate counter-narratives about the civil law system. Since tort reform is constantly a political issue, this study addresses one way in which popular support for tort reform might be mobilized.