Author's note. Adapted from the author's amicus brief in an appeal pending before the Georgia Supreme Court in which the appellants ask the Court to overrule its decision in Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731 (2010). The brief argues that Nestlehutt's outcome — invalidation of the noneconomic-damages cap in 2005 Ga. SB 3 — is independently supported by the property-protection clauses of the Georgia Constitution. The property-rights argument runs alongside the jury-trial-right argument that Nestlehutt developed and is treated in the brief as an independent ground. The methodology is portable: any state whose constitution makes property protection a fundamental commitment will face the same question, and the analysis that follows can be adapted to that constitutional text.
The clause that does the work
The Georgia Constitution opens with this command: "Protection to person and property is the paramount duty of government and shall be impartial and complete." Art. I, § 1, ¶ 2. That clause is not the takings clause. It is not the impairment-of-contracts clause. It is a free-standing property-protection clause that operates at the level of paramount commitment. The takings clause at Art. I, § 3, ¶ 1 is a more specific application — it speaks to compensation for what the State has taken. The "paramount duty" clause speaks earlier, to what the State may declare not property in the first place.
The clause has constitutional pedigree. The "paramount duty" formulation appeared in Georgia's 1868 Constitution. The 1861 Constitution carried a parallel one: "Protection to person and property is the duty of government; and a government which knowingly and persistently denies or withholds from the governed such protection, when within its power, releases them from the obligation of obedience." Art. I, § 3. Georgia's commitment to property protection as a paramount duty of government is older than the modern constitution; it carries forward through every iteration.
The constitutional text does not enumerate every form of property it protects. The takings clause speaks generally; the "paramount duty" clause speaks generally. Many recognized forms of property are nowhere named — cash money, intellectual property, securities and financial instruments, digital assets, partnership and LLC interests, professional licenses, choses in action. The clauses protect property categorically; the categorical protection is what the "paramount duty" language means.
Noneconomic damages are property
The threshold question is whether the recovery the cap targets is a traditional property interest. In Georgia the answer is settled. The Court already held in Nestlehutt that "[n]oneconomic damages have long been recognized as an element of total damages in tort cases, including those involving medical negligence," citing Blackstone and other common-law authorities. Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731 (2010). The right to acquire noneconomic damages predates the founding of the State.
That much is uncontroversial. The interest existed at common law; it was recognized in Georgia from the beginning; it was not created by the General Assembly and is not the General Assembly's to abolish. The property interest in cash in a bank account is no more venerable than the property interest in noneconomic damages. Both forms of property existed in Georgia law from the beginning. Other forms of property — cryptocurrencies are the modern example — are less venerable but still protected. The traditional, founding-era pedigree of noneconomic damages places them firmly inside the category of property the constitutional clauses cover.
Regulation versus redefinition: what the clause forbids
The right to acquire a traditional form of property can be regulated. Statutes of limitations regulate it. Rules of civil procedure regulate it. Rules of evidence regulate it. None of these is constitutionally suspect, because none of them defines the property interest out of existence. They set conditions on its enforcement.
What the property-protection clause forbids is something different. The clause forbids the legislature from defining a traditional property interest out of existence — wholly or partially, and not even prospectively. A damage cap is not a procedural regulation. It does not change the cause of action; it does not change the measure of damages; it does not create a new evidentiary burden or a new statute of limitations. The 2005 Act left all of that in place. After the trial has run on the traditional rules, the cap reaches in and extinguishes the verdict above its threshold. That is redefinition, not regulation.
A State cannot do this by ordinary legislation. The U.S. Supreme Court addressed the analogous federal-takings move directly in Tyler v. Hennepin County, 598 U.S. 631 (2023):
[T]he Court draws on existing rules or understandings about property rights. State law is one important source. But state law cannot be the only source. Otherwise, a State could sidestep the Takings Clause by disavowing traditional property interests in assets it wishes to appropriate. The Takings Clause would be a dead letter if a state could simply exclude from its definition of property any interest that the state wished to take.
Tyler's point about the federal Takings Clause is the same point Georgia's "paramount duty" clause makes about property under state law: the legislature cannot define a traditional property interest out of existence simply because the legislature wishes to take it. The reasoning runs in both directions. A cap that avoids takings analysis by preventing the property right from vesting is doing exactly what Tyler forecloses on the takings side.
The hypothetical that makes the principle visible
The clearest test of whether the legislature has the power claimed is whether the same theory of legislative power supports caps on other traditional forms of property. By the same theory of authority that lets the General Assembly declare —
- "Henceforth, no individual may acquire a property interest in noneconomic damages exceeding $350,000" —
the General Assembly could declare:
- "Henceforth, no individual may acquire a property interest in capital gains exceeding $350,000."
- "Henceforth, no individual may acquire a property interest in dividend income exceeding $350,000."
- "Henceforth, no individual may acquire a property interest in wages exceeding $350,000."
These are not rhetorical hypotheticals. There are political constituencies whose policy programs include moves of this kind, targeting categories of income or property held by disfavored classes. Whether or not any specific proposal is on the table this term, the constitutional structure does not depend on what is on the table. The point is the equivalence of the moves. If the General Assembly can prospectively cap noneconomic damages at $350,000 by ordinary legislation, it can do the same to wages by ordinary legislation. The Constitution provides that fundamental changes to property must come, if at all, through constitutional amendment — through the deliberative process the framers built specifically to handle changes of this kind.
A constitution serves as one of several distributions of power against excesses of any temporary governing majority. It spreads power across time and demands greater deliberation for fundamental change. That tempering function is more important now than in the recent past, in a period that combines close voting margins, hyper-partisanship, and divergent promises of dramatic change. Large policy swings can happen on thin margins. If the property clauses do not stop ordinary legislation from prospectively redefining traditional property out of existence, they do not do the work a constitution is supposed to do.
Strict scrutiny: the clause supplies the right, the standard supplies the test
The "fundamental" status of the right comes from the constitutional text. The property-protection clause makes protection of property the paramount duty of government — "impartial and complete." A right whose protection is the paramount duty of government is not a peripheral right under Georgia constitutional text.
Where a statute burdens a fundamental right, Georgia applies strict-scrutiny review. Cf. Ambles v. State, 259 Ga. 406 (1989) ("a statute is tested under a standard of strict judicial scrutiny if it … interferes with the exercise of a fundamental right. Strict judicial scrutiny demands that the statute be narrowly tailored to serve a compelling state interest."). The clause supplies the fundamental-right characterization; Ambles supplies the standard.
The damage cap does not survive strict scrutiny. The professed legislative goal — reducing malpractice insurance premiums to attract healthcare providers to Georgia — is a public interest, but the cap is not narrowly tailored to it. The General Assembly has direct mechanisms for subsidizing insurance premiums; it subsidizes many things. The cap reaches the goal only through an attenuated trickle that depends on assumptions about insurance economics that do not, on examination, hold up. A cap that takes money from victims and transfers it to tortfeasors and their insurers, while creating no direct mechanism for reducing premiums, is not a narrowly tailored means to the stated end.
The takings backup: the gestalt-switch and why it resolves the right way
The property-protection argument can be run as a takings argument too. The takings analysis presents what amounts to a gestalt-switch. Look at the cap one way and there is no taking, because the cap prevents the property right from vesting at all — the right is defined out of existence before it could ever attach. Look at the cap the other way and there is a taking, because the cause of action and the measure of damages remain in place: the plaintiff is injured, the property interest in damages vests at the time of injury even though the amount is set later, the jury fixes the amount, the trial judge declines remittitur — and only then does the cap reach in and take the already-vested verdict above its threshold.
Two considerations resolve the gestalt-switch in favor of the second view. First, the underlying right — the right to acquire property — is fundamental. Where a statute can be read either as constitutional or not, and the right at issue is fundamental, strict-scrutiny review pulls toward the reading that preserves the right. Second, Tyler supplies the operative principle: a state cannot sidestep the takings clause by disavowing traditional property interests in assets it wishes to take. A cap that avoids the takings analysis only by defining the property interest out of existence is the very move Tyler forecloses.
The takings argument is independent of the "paramount duty" argument and serves as a backup. In a brief that already runs the property-protection argument, it does not need to do most of the work; it converges with the "paramount duty" argument toward the same conclusion. The two arguments are not duplicative — they engage two different clauses of the Constitution — but the "paramount duty" clause is the cleaner of the two, because it does not require characterizing the cap as taking a vested right and can run before the vesting question even arises.
Portability: where the methodology travels
The methodology is portable to states whose constitutions specifically protect property. The shape of the analysis is the same: identify the recovery the cap targets as a traditional property interest, anchored in Nestlehutt-type authority or its state-law equivalent; identify the state-constitutional clause that protects property as a matter of paramount or fundamental commitment, distinguishing it from the takings clause; apply strict scrutiny under the local fundamental-rights standard. Tyler v. Hennepin County supplies the federal principle on the redefinition move and is available in every state court as persuasive authority on the same question. The brief-writer's job in each state is to find the state's own version of the "paramount duty" clause and the state's own version of Nestlehutt's common-law-recovery holding, and to run the same analytical structure.
For the brief-writer
A brief opposing an attempt to overrule Nestlehutt — or, in another state, opposing the application of an analogous statutory damages cap — should:
- Lead with the property-protection clause, not the takings clause. The takings clause speaks to compensation for what is taken; the property-protection clause speaks to what the legislature may not redefine out of existence in the first place. In Georgia, the operative clause is Art. I, § 1, ¶ 2 — "Protection to person and property is the paramount duty of government and shall be impartial and complete." Cite the clause, quote it, and frame the rest of the argument as application of its command.
- Anchor noneconomic damages in Nestlehutt. The cap's response to a property-rights challenge is that noneconomic damages are not really property — that they are a creature of statute the legislature is free to limit. Nestlehutt forecloses that response in Georgia. It traces noneconomic damages to Blackstone and to the common-law authorities that informed Georgia tort recovery from the founding. Lead with the holding and the citation.
- Frame the move as redefinition, not regulation. Make the regulation / redefinition distinction explicit. Statutes of limitations regulate. Rules of civil procedure regulate. Damage caps redefine. The redefinition is partial, but the clause forbids redefinition that is wholly or partially out of existence. The "partial" modifier is doing work and the brief should call it out.
- Use the cross-property hypothetical. The cleanest test of whether the General Assembly has the power claimed is whether the same theory of legislative authority supports caps on capital gains, dividends, or wages. Force opposing counsel to draw the line. There is no constitutionally principled line that lets the legislature cap noneconomic damages but stops it from capping wages.
- Quote Tyler v. Hennepin County directly. Tyler states the operative principle in the words a state court is most likely to adopt: a state cannot sidestep its property protections by disavowing traditional property interests in assets it wishes to take. The U.S. Supreme Court's recent endorsement of the principle gives state courts cover to apply it under state-law equivalents.
- Argue strict scrutiny. The fundamental-right characterization comes from the property-protection clause itself. The standard comes from Ambles and its analogues: a statute that interferes with the exercise of a fundamental right must be narrowly tailored to a compelling state interest. The cap fails this test. A brief that omits the strict-scrutiny demand leaves the leverage that the property-protection clause supplies on the table.
- Run the takings argument as a backup. The takings clause converges on the same conclusion but depends on characterizing the cap as taking a vested right rather than as preventing vesting. The "paramount duty" clause does not require that characterization and is the cleaner argument. Run takings second, briefly, with Tyler doing the work.
The property-rights argument runs alongside the jury-trial-right argument that Nestlehutt developed. The brief from which this article is adapted treats the jury-trial framework as the existing anchor and adds the property-rights argument as an independent ground. A brief that runs both arguments doubles the constitutional pressure on the cap. A brief that runs only the jury-trial argument leaves the property argument on the table — and leaves the court without the clause that operates above the takings clause and squarely answers the redefinition move on which damage caps depend.
