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Cristina Tilley, AY24-25 UCHV Fellow in Law and Normative Thinking, will present “Tort's Origin Story” at the Program and Law and Normative Thinking Seminar. In the American legal universe, tort is depicted as a body of law with wealth-maximizing superpowers, borne of nineteenth century industrial growth. But the historical tale that places tort at the center of the modern political economy leaves out the personal injury cases that occupied courts during the country’s Founding decades. Inspect those cases, and a different origin story emerges. For the country’s first thirty years, tort was the primary site for adjudication of social status relationships within local communities. Intentional wrongs like battery, assault, false imprisonment, slander, and seduction, along with property wrongs like trespass to land and chattels, were cornerstones of the Founding era docket. These lawsuits brought citizens together to evolve shared norms about the behavior owed to neighbor-litigants – often women, enslaved people, or the poor. Put simply, tort was the original law of social justice.
This Article presents the first ever empirical study of state tort litigation during the Founding decades. Evaluating 7,000 civil cases decided by state supreme courts, it finds that one-third of them sounded in tort. Many sought vindication of intangible dignity interests by local juries, and a considerable number of the marginalized plaintiffs bringing them succeeded in their quest for community recognition. These findings refute three claims long peddled by “econohistorians” of tort: that antebellum injury litigation was insubstantial; that it lacked theoretical coherence; and that the utilitarian principles of negligence that filled this vacuum to manage industrial growth are the “real” and “natural” province of tort.
If early American tort was both robust and rights-oriented, why is the economic account so deeply lodged in modern discourse? The Article hypothesizes that tort-as-wealth-maximizer is a convenient fiction for two distinct scholarly factions: laissez-faire economists and movement liberals. Placing tort’s birth at the start of the Second Industrial Revolution allows economists to falsely historicize the Gilded Age judicial preference for corporate risktaking as part of tort’s DNA. And dismissing tort as “backward looking” allows legal liberals to rationalize an expansive public law apparatus to drive equity initiatives through the state.
Recovering the history and tradition of tort throws new light on surprising branch points in the relationship of American private law to its public counterpart. For example, if private tort law was the original repository for individual rights, might the “unenumerated rights” protected from disparagement in the Ninth Amendment be those dignitary interests vindicated by tort juries rather than the amorphous “fundamental rights” enforced by judges? Theoretically, this reading casts doubt on the primacy of public law in fraught sociolegal sectors like speech, policing, and employment, as dignity claims in tort can exert power akin to those grounded in the constitution. Practically, it may be an auspicious time to reallocate legal power away from regressive Article III courts applying public law to impose social rules without popular input, and back to the most institutionally competent normgivers in our democratic system: lay Americans bringing and deciding claims in the private law of tort.
To attend virtually or to request a copy of the paper, contact Kim Murray.
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