State Constitutions and American Tort Law: A History

Abstract

Over the past twenty years, a number of state statutes purporting to reform the law of torts have been struck down by state courts as unconstitutional under state constitutions. Commentators on all sides have treated these decisions as a new phenomenon in American law. In fact, American tort law has developed for over a century in the shadow of state (and occasionally federal) constitutional law. Beginning in the late nineteenth century, state tort reform legislation came under sustained constitutional critique. Late nineteenth and early twentieth-century state courts developed a small number of time-tested outer bounds on the legislative power to alter the rules of tort suits. The current generation of state constitutional decisions reviewing tort reform legislation are thus merely the latest incarnation of what has been more than a hundred years of interaction between American constitutions at the state and sometimes even federal levels, on one hand, and the law of torts, on the other. This history, in turn, is a cautionary tale for all those who would intervene in today's tort reform efforts. Supporters of modern tort reform have little occasion for seeing unprecedented threats to basic constitutional principles. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too, for under the guise of judicial review, state courts have all too often used state constitutional provisions to obstruct experiments in public policy that over time have come to be widely respected.

Keywords: Torts, Tort Reform, State Constitutions,

JEL Classification: K13, K32, K41