NAHMIAS, Justice, concurring specially.

I join Divisions 2 and 3 of the majority opinion and Division 1 except for its discussion of stare decisis on page 25. I believe that there is little need to rely on stare decisis to decide this case. Our precedents holding that the constitutional "right to the courts" provision, Ga. Const. of 1983, Art. I, Sec. I, Par. XII, does not create an express and unfettered "right of access to the courts," including Nelms v. Georgian Manor Condominium Assn., 253 Ga. 410 ( 321 SE2d 330) (1984), were correctly decided, for the reasons discussed by the majority and elaborated on below. Were those cases wrongly decided, however, I believe we would need to more carefully consider stare decisis as it applies in this case's context of constitutional interpretation.

1. The doctrine of stare decisis is always important, but it is less compelling when, as in this case, the issue is the meaning of a constitutional provision. That is because it is much harder for the democratic process to correct or alter our interpretation of the Constitution than our interpretation of a statute or regulation. The case exclusively relied upon by the majority, Etkind v. Suarez, 271 Ga. 352 ( 519 SE2d 210) (1999), was a statutory interpretation case. Indeed, just after the passage that the majority quotes at length, see Majority Op. at 25, the Etkind Court emphasized the statutory context of the stare decisis analysis at issue there:

"[E]ven those who regard 'stare decisis' with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute." [Cit.] A reinterpretation of a statute after the General Assembly's implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function. Abernathy v. City of Albany, [ 269 Ga. 88, 90 ( 495 SE2d 13) (1998)]. Because it constitutes controlling authority on the interpretation of the statutory law of this state, [ Atlanta Obstetrics Gynecology Group v. Abelson, 260 Ga. 711 ( 398 SE2d 557) (1990)] is "binding upon us and will be followed in the present case unless the law upon which [it is] based has been subsequently changed by legislative action so as to require a different ruling at the present time." (Emphasis supplied.) Brinkley v. Dixie Constr. Co., 205 Ga. 415, 416 ( 54 SE2d 267) (1949). Notwithstanding the public policy arguments which support a broader application of our malpractice statute, it appears that the General Assembly has not found those arguments to be persuasive, since it has not amended that statute so as to provide for a wrongful birth cause of action. Abernathy v. City of Albany, supra at 90.

Etkind, 271 Ga. at 358.

The statutory context of Etkind also requires the majority, in its second quotation from that case, to replace the original "construction of the tort law of this state," id. at 357 (emphasis supplied), with "construction of the [constitutional] law of this state," Majority Op. at 25. Those are not the same thing, and it is perilous, in our democratic system, to treat them as though they are the same. Unlike the medical malpractice statute at issue in Etkind, if we interpreted the "right to the courts" constitutional provision incorrectly in Nelms (or our other prior cases), the people's representatives in the General Assembly would be powerless to correct that error, and the people would have to overcome the significant delays and barriers applicable to constitutional amendments to do so. See generally Ga. Const. of 1983, Art. X, Sec. I.

Thus, as the Chief Justice of the United States recently explained:

"Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." . . .

At the same time, stare decisis is neither an "inexorable command," . . ., nor "a mechanical formula of adherence to the latest decision," . . . especially in constitutional cases. . . . If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants. . . . Stare decisis is instead a "principle of policy." . . . When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.

Citizens United v. Federal Election Commn., ___ U. S. ___, ___ ( 130 SC 876, 175 LE2d 753) (2010) (Roberts, C. J., concurring) (citations omitted; emphasis in original).

For these reasons, stare decisis in the constitutional context requires more careful consideration of factors such as the age of the precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning. See Montejo v. Louisiana, ___ U. S. ___, ___ ( 129 SC 2079, 2088-2089, 173 LE2d 955) (2009). If the majority in this case is to rely heavily on stare decisis, it should focus on such careful analysis rather than simply quoting exhortations about the importance of stare decisis in interpreting statutes. In my view, we need not rely heavily on stare decisis in this case, because our leading precedents on this issue were "decided right."

2.1 find interesting, but largely irrelevant, the extensive debate between the majority and the dissent regarding whether Samuel M. Small's stenographic report on the 1877 constitutional convention is an "official" record of the convention. If I had to decide the issue, I would say that Mr. Small's report is not the "official" record, but that it is a reliable record of the proceedings — and that is the more important point for the task at hand.

Our task in interpreting the Constitution is to determine the meaning of the language used in that document to the people who adopted it as the controlling law for our State. Where the meaning of the provision at issue is unclear, it is useful to look to contemporaneous sources of various kinds to understand it, as well as the problems that the provision was meant to address. The official records of our constitutional conventions are certainly one such source, but they are not the exclusive documents to which we may refer. We may look to contemporaneous dictionaries, legal treatises, and cases, as well as histories of the period.

That is why, for example, in interpreting the meaning of the United States Constitution, it is customary to look to such sources as James Madison's notes of the Constitutional Convention of 1787 (which are "unofficial," as the dissenting opinion would say), the Federalist Papers (including those written by John Jay, who was not a delegate), and the writings of such people as Thomas Jefferson (who was in France during the convention). See, e.g., Banco National de Cuba v. Sabbatino, 376 U. S. 398 ( 84 SC 923, 11 LE2d 804) (1964). See also District of Columbia v. Heller, 554 U. S. 570 ( 128 SC 2783, 2799, 2802 n. 17, 2803, 171 LE2d 637) (2008) (discussing the Federalist Papers and Jefferson's writings in interpreting the Second Amendment); id. at 654 ( 128 SC at 2832, n. 17, 2835) (Stevens, J., dissenting) (same). None of these sources are an "official" record of the Framing, but all of them (and many others) are useful because they demonstrate what intelligent and informed people at the time understood the language of the Constitution to mean and what evils it was meant to protect against. Thus, I believe it is simply wrong to assert, see Dissenting Op. at 44, that courts may consider only "official accounts" in seeking to interpret the meaning of constitutional or statutory text.

As ratified in 1877, the "right to the courts" provision read as follows: "No person shall be deprived of the right to prosecute or defend his own cause in any of the Courts of this State, in person, by attorney, or both." Ga. Const. of 1877, Art. I, Sec. I, Par. IV. That language remained unchanged in the 1945 and 1976 Constitutions. See Nelms, 253 Ga. at 412. The short discussions regarding this provision during the debates leading to our current Constitution focused on the deletion of the final phrase "or both," in order to clarify that a litigant is not entitled to be represented by himself and by counsel at the same time. See id. at 412-413. It is indeed clear that the 1983 Constitution did not alter the original purpose of the provision. So what was that purpose?

Although the dissent repeatedly asserts, without any analysis, that the "plain language" of the provision establishes a fundamental "right to access the courts," see Dissenting Op. at 42, 44, 45, the text of the provision actually focuses directly on the right of Georgians to litigate their cases in person or by attorney (or, originally, both). It does not, on its face, appear to be an express right of access to the courts provision. Indeed, as the Nelms Court discussed and the dissent makes no effort to refute, the constitutions of several of our sister states contain broad "access to the courts" provisions, the language of which is entirely different. See 253 Ga. at 411-413 n. 2 (comparing the constitutions of Florida, Kentucky, and Alabama). Nor does the dissent cite any history or contemporaneous discussion (official or not) suggesting that our "right to the courts" provision was meant to establish a broad or unfettered right of access to the courts.

To the contrary, if one looks beyond the plain language of the provision, the history confirms its meaning and its perceived need at the time — to guarantee the right to choose self-representation or representation by counsel in all cases in Georgia's courts. Such a limited purpose for a constitutionally established, stand-alone right may seem counterintuitive for lawyers and judges operating in a world where it has been settled for decades that the Sixth and Fourteenth Amendments to the United States Constitution protect the right of criminal defendants to represent themselves. See Faretta v. California, 422 U. S. 806, 807 ( 95 SC 2525, 45 LE2d 562) (1975). However, the need to expressly guarantee the right to self-representation in all cases was more important to citizens in the earlier days of the Republic. See id. at 830, n. 39 ("The Founders believed that self-representation was a basic right of a free people. Underlying this belief was not only the antilawyer sentiment of the populace, but also the 'natural law' thinking that characterized the Revolution's spokesmen."); id. at 828-829 n. 38 ("After the Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion." (citing Article 58 of the Georgia Constitution of 1777 and Article III, Section VIII of the Georgia Constitution of 1798)). See also Iannaccone v. Law, 142 F3d 553, 556-558 (2d Cir. 1998) (discussing the history of the right to self-representation in civil cases). Even today the right of self-representation in federal civil cases is protected only by statute (albeit a statute that dates back to the formative Judiciary Act of 1789). See id. at 556; 28 USC § 1654 ("In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."). Thus, while the dissent contends that construing the "right to the courts" provision as a "mere right to self-representation in the courts" is so constricting as to render the provision "meaningless," Dissenting Op. at 42 n. 6, that contention reflects a profound misunderstanding of our history and a profound disregard for the right to self-representation.

As discussed in the dissenting opinion, the "right to the courts" provision emerged first during the 1877 convention as a proposal by Mr. Key to amend the due process clause, and then the following day in an amendment by Mr. Tift, as recounted in Nelms and Bloomfield v. Liggett Myers, Inc., 230 Ga. 484 ( 198 SE2d 144) (1973):

Small's A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877 (Constitution Publishing Company, Atlanta, 1877) reflects the adoption of the language in 1877 as the proposal of Mr. Tift, who explained it as follows (p. 94): "Mr. TIFT. I see no provision of that kind in the printed bill before us. It is very important that every person shall be permitted to prosecute or defend his own case in any of the courts of this state. In some of the courts they have a provision that no person shall appear without an attorney. At any rate, that is the practice in nearly all of the courts. In cases where persons are not able to employ attorneys, the court appoints one for him. [Sic] Yet, I think, in every case, the person should have the right to appear himself, and by attorney also, I call for the division. Upon the division the vote was — [ayes] 101; noes 29. So the amendment was received."

Bloomfield, 230 Ga. at 484. Accord Nelms, 253 Ga. at 412.

Thus, Nelson Tift — one of the most prominent Georgians of the time and someone directly involved in the framing of the Constitution — explained that the problem to which a right of choice provision was the solution was widespread and otherwise corroborated the conclusion that the words of the provision mean exactly what they appear to mean. That the debates leading to the 1983 Constitution focused solely on a subsidiary issue of the right of choice — whether a litigant should have the right "both" to represent himself and be represented by counsel — further confirms this understanding. See Nelms, 253 Ga. at 413 ("The vastly broader question of whether this paragraph affords an individual the right of access to the courts within the meaning appellant urges was never an issue in the [pre-1983] discussions.").

Appellees note that the language proposed by Mr. Tift in 1877 and carried forward in relevant part to today's Constitution reflects similar language in earlier constitutions, particularly Article 58 of the original Constitution of 1777 ("No person shall be allowed to plead in the courts of law in this State, except those who are authorized so to do by the house of assembly. . . . This is not intended to exclude any person from that inherent privilege of every freeman, the liberty to plead his own case.") and Article III, Section VIII of the Constitution of 1798 ("[N]o person shall be debarred from advocating or defending his cause before any court or tribunal, either by himself or counsel, or both."). The text of these provisions was similarly focused on the individual's right not to be "debarred" from pleading or defending his case in court, rather than expressing a general right of access. See Faretta, 422 U. S. at 829 n. 38 (citing the 1777 and 1798 provisions as examples of early constitutional protections of the "right of self-representation"). Indeed, the 1877 Constitution returned to this type of focused language, instead of following the broader language used in the Constitutions of 1861, 1865, and 1868 ("The right of the people to appeal to the courts . . . shall never be impaired.").

In sum, although the dissent repeatedly refers to the "right to access the courts," see Dissenting Op. at 42 n. 6, 45, n. 13 (emphasis supplied), neither Mr. Key's proposal, nor Mr. Tift's proposal, nor the heading or text of the constitutional provision itself, nor the debates regarding the 1983 Constitution, nor any other historical evidence identified by the dissent makes mention of protecting unfettered "access" to the courts. Indeed, the dissent can express its interpretation of the "plain language" of the provision only by adding a word that does not appear in it, and which our constitutional history does not support reading into it. For these reasons, our leading precedents on this issue clearly reached the right result.

3. Consistent with the discussion above, the Bloomfield Court held that, "considering the prior constitutional history of this subject we view [the pre-1983] provision of the Constitution as primarily intended to guarantee the right of self-representation in the courts of this State . . . or by an attorney, or both." 230 Ga. at 484. The Court then added that the "right to the courts" provision "only incidentally recogniz[es] the inherent right of access to the courts." Id. The Court in Nelms similarly stated that "it is axiomatic that an individual must have access to the courts in order to assert the right of self-representation provided by [the right to the courts provision]." 253 Ga. at 413. To that I would add that the entire existence of our court system and all of the constitutional provisions related thereto are premised on the understanding that citizens will have access to take their cases to court. But that hardly supports the claim that the "right to the courts" provision provides an express or "unfettered" right of access to the courts, as appellees argue. Nor does it mean, as the dissent would have it, that this Court has license to roam through and approve or disapprove, using entirely undefined standards, the myriad of restrictions and limitations that the legislature and our case law have placed upon who can go to court, when they can go to court, what it costs to file a case or pleadings, what causes of action may be brought, what evidence is allowed or prohibited in support of those claims, the standards and burden of proof for such claims, etc. There are entire chapters of the Georgia Code and many decisions by this Court that establish and uphold such restrictions.

The Nelms Court therefore properly concluded that, despite a right of access to the courts being "axiomatic," it is not express, and "we decline to give this constitutional provision the expansive interpretation sought." Id. Bloomfield is entirely consistent with this position. There the Court explained that "one having exercised his inherent right of access and having pleaded his case, in person, or by attorney, or both, subjects himself to the inherent power of the court to control its proceedings." 230 Ga. at 484. The Court then rejected the asserted "access" claim without scrutinizing the merits of the stay the trial court had ordered. Id.

4. To the extent that the dissent means to argue that arbitrary, discriminatory, or excessive limitations on the ability of litigants to access the courts may be challenged, I agree. But instead of simply opining whether or not we judges think a challenged limitation on access is fair, as the dissent seems to do, such challenges should be raised and must be reviewed under more well-established standards for due process and equal protection claims. We have done so in other "access to the courts" cases. See, e.g., Couch v. Parker, 280 Ga. 580, 582 ( 630 SE2d 364) (2006) (due process); Eubanks v. Ferrier, 245 Ga. 763, 766 ( 267 SE2d 230) (1980) (due process and equal protection); State v. Sanks, 225 Ga. 88, 89 ( 166 SE2d 19) (1969) (due process). It is a high hurdle, because the United States Supreme Court has made clear that departures from the American Rule are not impermissible per se but instead may be properly implemented by statute. See Life Cas. Ins. Co. of Tenn. v. McCray, 291 U. S. 566, 569 ( 54 SC 482, 78 LE 987) (1934) (upholding an Arkansas statute awarding attorney fees against insurance companies which, "in good faith and upon reasonable grounds," fail to pay claims within the time specified in the policy, explaining that "[t]here are systems of procedure neither arbitrary nor unenlightened, and of a stock akin to ours, in which submission to such a burden is the normal lot of the defeated litigant, whether plaintiff or defendant. . . . Nothing in the Fourteenth Amendment forbids a like procedure here. The assurance of due process has not stereotyped bills of costs at the rates known to the [Founding] Fathers.").

Appellees do not raise such challenges in this case, perhaps because they would obviously fail. The fee-shifting provisions of OCGA § 9-11-68 do not flatly deny anyone access to the courts, as statutes of limitation and repose and other restrictions that have survived judicial scrutiny can be said to do. Litigants remain free to file and defend tort cases, even if they receive a settlement offer and even if they elect to reject the offer. There is also little question that OCGA § 9-11-68 is rationally related to the State's legitimate objective of "encourag[ing] litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation." Majority Op. at 29.

Nor can a credible argument be made, at least on the record in this case, that the statute substantially impedes, or "chills," litigants from filing and pursuing their claims, in violation of due process or equal protection. OCGA § 9-11-68 was originally enacted in 2005. With that statute on the books, these appellees accessed the court by filing their tort claims. They then pursued those claims vigorously, ignoring a settlement offer, until the claims were finally resolved with a grant of summary judgment against them, the appeal of which they did not pursue. (That final judgment, by the way, determines as a matter of fact and law that the value of appellees' claims was zero, so that appellants' settlement offer of $5,000 was reasonable.) Appellees did not challenge OCGA § 9-11-68 or contend that it had affected their case until after the merit (or lack of merit) of their claims had been determined through the usual court processes and until after an award of attorney fees was entered.

In short, there is no evidence that these appellees' rights were chilled in the slightest. Consequently, their facial attack on the constitutionality of OCGA § 9-11-68 must fail, as it is clear that the statute may be constitutionally applied in many cases, such as this one and others in which tort plaintiffs (or defendants) are demonstrably undeterred from pursuing (or defending) claims, as well as the many cases in which parties can reasonably estimate the value of their case and nevertheless refuse to accept a settlement offer in that range (plus or minus 25%). It may sometimes be difficult to make such estimates, but as Justice Holmes once said, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." Nash v. United States, 229 U. S. 373, 377 ( 33 SC 780, 57 LE 1232) (1913) (explaining that this rule applies even in criminal cases where "[i]f [the litigant's] judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death").

Outside the First Amendment overbreadth context, a plaintiff can succeed in a facial challenge only by "'establish(ing) that no set of circumstances exists under which the [statute] would be valid,' i.e., that the law is unconstitutional in all of its applications," or at least that the statute lacks a "'"plainly legitimate sweep."'" Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 ( 128 SC 1184, 1190, 170 LE2d 151) (2008) (citations omitted). That has not been done in this case. Like the trial court's, the dissent's assertion that OCGA § 9-11-68 will have a broad "chilling" effect on tort litigants is entirely speculative, unsupported by the record or other evidence, and contradicted by the fact that thousands of tort cases continue to be filed and defended in the courts of this State.

5. On motion for reconsideration, appellees contend that the Court has disregarded a line of our cases beginning with Tift v. Towns, 63 Ga. 237 (1879), which discuss the circumstances under which attorney fees and costs may be imposed on losing parties and cite the "right to the courts" provision. I agree that the majority should address these cases, given that it relies significantly on stare decisis in reaching its result. Because the majority opinion does not mention these cases, I will explain why I do not believe they are controlling.

Although it was decided after ratification of the 1877 Constitution, Tift v. Towns does not mention the "right to the courts" or any other constitutional provision. Instead, the Court simply stated and relied upon the American Rule, which was and is the background law in this State. See 63 Ga. at 242 (reversing an award of attorney fees as damages to the prevailing defendant, explaining that "[w]here there is a bona fide controversy for the tribunals to settle, and the parties cannot adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation").

The next case in the series addressed a claim for attorney fees under the civil code at the time, on the ground that the lawsuit was brought in bad faith. See Traders' Ins. Co. v. Mann, 118 Ga. 381, 384 ( 45 SE 426) (1903). The Court discussed the bad faith exception to the background rule, explaining that while costs and interest are awarded to the prevailing party, "it has long been the policy of Georgia not to require the defendant to pay the expense of obtaining a judgment against himself." Id. at 386. This time the Court quoted the "right to the courts" provision in passing, noting that it "is a privilege granted the defendant as well as the plaintiff," but without discussing its text or history or explaining why it would apply to the issue at hand. Id.

A few years later in Fender v. Ramsey Phillips, 131 Ga. 440 ( 62 SE 527) (1908), the Court said that "[t]he constitutional right to appeal to the courts . . . authorizes a fair and legitimate testing of one's bona fide claim of right," so that "[a] litigant is not subject to be penalized by the award of damages whenever he loses his case. Otherwise every man would enter the doors of the court-house, no matter how honestly or with what probable cause, with the danger of damages hanging over him." Id. at 442. This case again appears to accurately apply the then-applicable statutory and common law rules regarding awards of attorney fees and litigation expenses, but it does not analyze, quote, or even accurately paraphrase the then-applicable constitutional provision. Instead, the Fender Court used the language of the 1861-1868 Constitutions, which was revised in 1877 to revert back to the 1777 and 1798 Constitutions' focus on the right to self-representation. See Division 2 above.

The subsequent cases in this line simply cite or quote the prior cases in discussing claims for attorney fees awarded under the statutory and common law of the time. The cases sometimes quote or summarize the "right to the courts" provision, but without any examination of the text or history of that constitutional provision or any mention of the dozens of other Georgia appellate cases that treat it, in accordance with its text and history, as a provision primarily protecting the right to choose self-representation. Our most recent case in this line, for example, simply quotes Fender and refers to the 1983 "right to the courts" provision in truncated form (omitting "either in person or by an attorney") and without analysis. See David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849, 851 ( 561 SE2d 89) (2002).

These cases all appear to reach the right result, because under the statutory and common law at the time each case was decided, an award of attorney fees to the prevailing party was not allowed under the circumstances presented. The cases, however, do not support the appellees' broad contention that the "right to the courts" provision prohibits a person from being "punished for exercising his right to plead his claim in court." Motion for Reconsideration at 27. To the contrary, these cases each discuss statutory and common law exceptions from the background American Rule, which have long authorized monetary penalties of various types and amounts against certain litigants. See, e.g., Mann, 118 Ga. at 386 (noting that costs and interest "are the only damages which the law imposes in such cases" (emphasis supplied)); Kent, 274 Ga. at 850 (" Generally, expenses for defense of a suit are unavailable unless authorized by statute." (emphasis supplied)). See also Vogtle v. Coleman, 259 Ga. 115, 117 ( 376 SE2d 861) (1989) ("The American rule has been that expenses for defending a suit are generally unavailable unless authorized by a specific statute." (emphasis supplied)).

Indeed, Georgia now has dozens and dozens of statutory provisions, and even one constitutional provision, authorizing awards of litigation costs and attorney fees to prevailing parties, including many that do not require a showing that the litigation was frivolous or pursued in bad faith. See, e.g., Ga. Const. of 1983, Art. I, Sec. III, Par. I (d) ("The General Assembly may provide by law for the payment by the condemnor of reasonable expenses, including attorney's fees, incurred by the condemnee in determining just and adequate compensation" in takings cases); OCGA § 4-11-35 (a) ("Any person who has been damaged by reason of a violation of this article [protecting farm animal, crop, and research facilities] may recover all actual and consequential damages, punitive damages, and court costs, including reasonable attorneys' fees, from the person causing such damage."); OCGA § 7-6A-6 (c) (1) ("The relief granted in an action pursuant to subsection (b) of this Code section [of the Fair Lending Act] . . . shall not exceed the sum of the amount of all remaining indebtedness of the borrower under such loan and reasonable attorneys' fees in such individual action"). See generally OCGA §§ 9-15-1 to 9-15-15 (providing for awards of litigation costs in civil cases, including attorney fees in some instances).

None of the cases in the Tift v. Towns line held that such a statute might be held unconstitutional; all of those cases simply applied the laws then on the books. We now have a new statute, first enacted by the General Assembly in 2005. See OCGA § 9-11-68. It reflects the "policy of Georgia," Mann, 118 Ga. at 386, that continuing tort litigation after rejecting a good faith settlement offer may constitute "wanton or excessive indulgence in litigation" and authorize "the burdening of one [litigant] with the counsel fees of the other" incurred after that rejection, Tift v. Towns, 63 Ga. at 242, if the ultimate judgment, after such continued litigation, is significantly lower than the settlement offer. This legislative policy judgment, one of many departing from the American Rule, is entitled to substantial deference from this Court. See Alyeska Pipeline Svc. Co. v. Wilderness Society, 421 U. S. 240, 247-262 ( 95 SC 1612, 44 LE2d 141) (1975) (reviewing the history of the American Rule in federal courts and concluding that "it is apparent that the circumstances under which attorneys' fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine"). To the extent that the Tift v. Towns line of cases may be read to question, based upon the "right to the courts" provision, statutory departures from the American Rule, those cases are inconsistent with the text and history of that constitutional provision as well as our Bloomfield/Nelms line of precedent.

6. Should a case be brought in which it is established that a party was actually precluded from filing, defending, or maintaining a meritorious tort case because of OCGA § 9-11-68, we can address any constitutional claims raised in that concrete setting. This is clearly not such a case, and for that reason I join the majority opinion, with the exception and additional points discussed above.