Georgia’s new tort reform package, recently signed into law by Gov. Brian Kemp, has been met with predictable applause from the business community and legal reform advocates.
It caps runaway damages, imposes new standards on evidence admissibility, and reins in what many see as a predatory litigation environment. For conservatives, it’s a familiar victory — an effort to restore balance, predictability, and economic competitiveness to a system distorted by jackpot verdicts and aggressive trial lawyer advertising.
On the surface, this is great for Georgia, and other states should be looking to follow suit. There is, however, one caveat: Buried in the text is a provision that should give pause, even to the most ardent tort reformers: A set of new restrictions and disclosure requirements aimed at third-party litigation funding.
On the surface, these rules appear procedural — mere transparency. In practice, they risk chilling access to courts and burdening a core constitutional right: the right to petition the government for redress.
This piece is not a defense of unchecked litigation finance. The industry, which connects plaintiffs with investors willing to fund lawsuits in exchange for a cut of any judgment or settlement, raises legitimate concerns. It can distort incentives, complicate discovery, and create conflicts of interest. But it also serves a real function — particularly for individuals or small businesses facing powerful defendants with deep legal war chests.
When the law makes it harder for those plaintiffs to access the resources they need to file a claim, it doesn’t just protect defendants. It curtails one of the most foundational elements of our legal system: The ability to assert your rights in court.
The First Amendment guarantees not just freedom of speech and association — it also protects the right to “petition the government for a redress of grievances.” Courts have consistently recognized that this includes access to civil courts. In NAACP v. Button (1963), the Supreme Court struck down Virginia’s attempt to restrict civil rights litigation on the grounds that it infringed associational rights.
In the case of In re Primus (1978), it reaffirmed that legal representation, funding, and coordination — particularly for public interest litigation — are forms of protected expression and advocacy.
Georgia’s new law doesn’t ban litigation funding outright, but by compelling disclosure of funding sources and adding procedural friction, it introduces the kind of selective burden that courts have previously frowned upon.
If litigation funders are forced into the open while insurance companies, defense consortia, and corporate legal departments remain shielded, that’s not neutrality — it’s viewpoint discrimination dressed up as reform.
There’s also a practical consequence worth noting. Many of the plaintiffs who rely on outside funding aren’t filing frivolous claims — they’re trying to stay in the fight. For them, the courtroom is the last available venue for justice. Reformers should be careful not to mistake asymmetry for abuse.
Conservatives are right to be skeptical of a litigation system that incentivizes massive payouts and strategic filings. But they should be equally skeptical of reforms that quietly erode constitutional rights in the name of efficiency.
The right to sue is not just a policy lever — it’s a protected mode of civic participation. And like any other constitutional right, it should not be curtailed simply because it’s inconvenient.
Georgia’s reform bill gets a lot right. It addresses real problems with creativity and courage. But if tort reform is going to remain a principled conservative project, it must hold the line not only on economics — but on the Constitution.
Justin Evan Smith is a law student and former business executive. He writes on contemporary legal issues, including constitutional law, judicial overreach, and the evolving balance of power in American governance.
