State Constitutions and american Tort Law: A History John Fabian Witt 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. The legislation at issue included employers'liability laws that expanded liability for ork accidents; spark fire statutes that made railroads liable for fires caused by engine sparks, stock statutes that made railroads liable for cattle killed on the tracks, wrongful death statutes that capped the damages available in death cases, and workmen's compensation statute. Late nineteenth and early hventieth-century state courts developed a small number of time-tested outer bounds on the legislative power to alter the rules of tort suits. In many uncontroversial cases, courts enforced specific and express constitutional rules to strike down statutes such as those that capped wrongful death damages despite a constitutional provision barring such caps. In anotherwell-established line of cases, courts placed outer bounds on legislatures'authority to allocate accident costs to parties with no causal connection to the accident in question. Such legislative allocations of accident costs without causation amounted effectively to a legislative king, redistributing wealth. But on those occasions in which courts reached outside these narrow rationales, they caused Associate Professor of Law, Columbia University. Many thanks to Bill Sage and Cathy Sharkey for comments on earlier drafts, and thanks to Kevin Meier for research assistance. A different version of this paper written for the Pew Charitable Trusts Project on Medical Liability in Pennsylvania isavailableathttp://medliabilitypa.org/research/files/witto304.pdf
* Associate Professor of Law, Columbia University. Many thanks to Bill Sage and Cathy Sharkey for comments on earlier drafts, and thanks to Kevin Meier for research assistance. A different version of this paper written for the Pew Charitable Trusts Project on Medical Liability in Pennsylvania is available at http://medliabilitypa.org/research/files/witt0304.pdf. State Constitutions and American Tort Law: A History John Fabian Witt* 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. The legislation at issue included employers’ liability laws that expanded liability for work accidents; spark fire statutes that made railroads liable for fires caused by engine sparks; stock statutes that made railroads liable for cattle killed on the tracks; wrongful death statutes that capped the damages available in death cases; and workmen’s compensation statutes. 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. In many uncontroversial cases, courts enforced specific and express constitutional rules to strike down statutes such as those that capped wrongful death damages despite a constitutional provision barring such caps. In another well-established line of cases, courts placed outer bounds on legislatures’ authority to allocate accident costs to parties with no causal connection to the accident in question. Such legislative allocations of accident costs without causation amounted effectively to a legislative taking, redistributing wealth. But on those occasions in which courts reached outside these narrow rationales, they caused
State Constitutions and American Tort Law-Witt political uproar and helped to bring on themselves the great Progressive Era court crisi In sum, the current generation of state constitutional decisions reviewing tort reform legislation are merely the latest incarnation of what has been more than a hundred years oj nteraction between American constitutions at the state and ometimes even federal levels, on one hand, and the law oftorts, on the other. The lesson of this interaction, however, is not simply to legitimate the current generation of state court decisions by providing them with historical precedents Constitutional interventions into the making of American tort law have led American state courts into some of their most ill-fated decisions. In particular, constitutional interventions to block the enactment of workmens compensation statutes at the opening of the twentieth centuryproduced political attacks on the legitimacy ofjudicial review that almost stripped state courts of their power to provide binding review of legislation The history of the American constitutional law oftorts, in short, is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those wh would use state constitutional litigation to ward off legislated fort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitution to interfere with ex in public policy that over time have come to be widely respected. Judging from the heated rhetoric of the plaintiffs' and defense bars over the past several years, one could be forgiven for thinking that the constitutionalization of American tort law must be a novel development State court decisions striking down tort reform statutes on state constitutional grounds, say defense-side commentators, constitute a new kind of "judicial nullification "of legislatures' legitimate public policy choices (Schwartz lorber 2001, 917). Such decisions arestate constitutionalism'run wild, exhibiting a"fundamental disrespect "for separation of powers principles(Schwartz lorber 2001, 919, Schwartz
2 State Constitutions and American Tort Law – Witt political uproar and helped to bring on themselves the great Progressive Era court crisis. In sum, the current generation of state constitutional decisions reviewing tort reform legislation are 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. The lesson of this interaction, however, is not simply to legitimate the current generation of state court decisions by providing them with historical precedents. Constitutional interventions into the making of American tort law have led American state courts into some of their most ill-fated decisions. In particular, constitutional interventions to block the enactment of workmen’s compensation statutes at the opening of the twentieth century produced political attacks on the legitimacy of judicial review that almost stripped state courts of their power to provide binding review of legislation. The history of the American constitutional law of torts, in short, is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected. Judging from the heated rhetoric of the plaintiffs’ and defense bars over the past several years, one could be forgiven for thinking that the constitutionalization of American tort law must be a novel development. State court decisions striking down tort reform statutes on state constitutional grounds, say defense-side commentators, constitute a new kind of “judicial nullification” of legislatures’ legitimate public policy choices (Schwartz & Lorber 2001, 917). Such decisions are “state ‘constitutionalism’ run wild,” exhibiting a “fundamental disrespect” for separation of powers principles (Schwartz & Lorber 2001, 919; Schwartz
「2004 State Constitutions and American Tort Law-Witt 2001, 692). They exhibit the kinds of Lochner Era" theories of the judicial role that were elsewhere"repudiated in 1937, and the result is described fantastically as perhaps the most severe crisis of legitimacy of law and legal institutions that we have faced since Dred Scott"(Priest 2001, 683 Presser 2001, 649) On the plaintiffs'side, the American Trial Lawyers'Association has initiated a constitutional litigation program designed to fend off a new tort reform campaign that threatens to result in the " restriction of constitutional rights"(Peck 2001a, 677). Putative tort reformers, plaintiffs dvocates say, want nothing less than the elevation of the designs of todays transient legislature over the words and intent of those who framed each states organic law', when courts today strike down tort reform gislation, they are thus upholding and even "reviving'"the traditional principles of American constitutional law(Peck 2001b, 26). Indeed, some on the plaintiffs side have even argued that state constitutional decisions striking down tort reform legislation are evidence of the ways in which the capture of state legislatures by defense interests has made courts the guardians of majoritarian will(Abel 1999). Yet what virtually everyone pparently agrees on is that the introduction of state constitutionalism American tort law is a relatively novel phenomenon. Even those who style themselves centrists see state constitutionalism as a newly important development in American tort law. Commenting on the most recent effort to reform the nations tort laws- an effort that began with the first medical malpractice crisis in the mid-1970s- one such observer has called the disputes over whether such reforms are constitutional a"battle, with roots over twenty-five years deep"'(Werber 2001, 1047). Few suspect that such constitutional questions go deep into the history of American law But this widespread impression of novelty constitutionalization of American tort law is wrong. American tort law and e law of American state constitutions have developed hand-in-glove over the past one hundred and twenty five years. Indeed, virtually from the beginnings of the field that we today label"tort law, American lawyers have been arguing about the constitutional limits of legislated tort reform Tort law as a field emerged roughly from the 1850s into the 1880s(Witt 2004). And from the 1870s onward, state constitutions powerfully influenced the development of the law of torts. Moreover, tort law and state
[2004] State Constitutions and American Tort Law – Witt 3 2001, 692). They exhibit the kinds of “Lochner Era” theories of the judicial role that were elsewhere “repudiated in 1937,” and the result is described fantastically as “perhaps the most severe crisis of legitimacy of law and legal institutions that we have faced since Dred Scott” (Priest 2001, 683; Presser 2001, 649). On the plaintiffs’ side, the American Trial Lawyers’ Association has initiated a constitutional litigation program designed to fend off a new tort reform campaign that threatens to result in the “restriction of constitutional rights” (Peck 2001a, 677). Putative tort reformers, plaintiffs’ advocates say, want “nothing less than the elevation of the designs of today’s transient legislature over the words and intent of those who framed each state’s organic law”; when courts today strike down tort reform legislation, they are thus upholding and even “reviving” the traditional principles of American constitutional law (Peck 2001b, 26). Indeed, some on the plaintiffs’ side have even argued that state constitutional decisions striking down tort reform legislation are evidence of the ways in which the capture of state legislatures by defense interests has made courts the guardians of majoritarian will (Abel 1999). Yet what virtually everyone apparently agrees on is that the introduction of state constitutionalism to American tort law is a relatively novel phenomenon. Even those who style themselves centrists see state constitutionalism as a newly important development in American tort law. Commenting on the most recent effort to reform the nation’s tort laws – an effort that began with the first medical malpractice crisis in the mid-1970s – one such observer has called the disputes over whether such reforms are constitutional a “battle, with roots over twenty-five years deep” (Werber 2001, 1047). Few suspect that such constitutional questions go deep into the history of American law. But this widespread impression of novelty in the constitutionalization of American tort law is wrong. American tort law and the law of American state constitutions have developed hand-in-glove over the past one hundred and twenty five years. Indeed, virtually from the beginnings of the field that we today label “tort law,” American lawyers have been arguing about the constitutional limits of legislated tort reform. Tort law as a field emerged roughly from the 1850s into the 1880s (Witt 2004). And from the 1870s onward, state constitutions powerfully influenced the development of the law of torts. Moreover, tort law and state
State Constitutions and American Tort Law-Witt constitutions have had reciprocal effects on one another, for even as constitutions shaped the law of torts, legislation in the torts area helped to construct basic principles in state constitutional law. Indeed, in the first ecade and a half of the twentieth century, state constitutional cases over reforms in the law of accidents generated political controversies that contemporaries saw rather more realistically than some defendant-side lawyers today -as the lowest moment in the history of American courts since the dred scott case The current generation of state constitutional decisions reviewing tort reform legislation are merely the latest incarnation of what has beer 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. The lesson of this interaction, however, is not simply to legitimate the current generation of state court decisions by providing them with historical precedents. Constitutional interventions into the making of American tort law have led American state courts into some of their most ill-fated decisions. In particular, constitutional interventions to block the enactment of workmens compensation statutes at the opening of the twentieth century produced political attacks on the legitimacy of judicial review that almost stripped state courts of their power to provide binding review of legislation. The history of the American constitutional law of torts, in short, is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected An introduction to state Constitutions For much of the twentieth century, state constitutions were a backwater in American law. As one widely commented-on survey found in the late 1980s only one in two Americans even know their state has a constitution(Kincaid 1988). Experts in matters of state constitutional law
4 State Constitutions and American Tort Law – Witt constitutions have had reciprocal effects on one another, for even as constitutions shaped the law of torts, legislation in the torts area helped to construct basic principles in state constitutional law. Indeed, in the first decade and a half of the twentieth century, state constitutional cases over reforms in the law of accidents generated political controversies that contemporaries saw – rather more realistically than some defendant-side lawyers today – as the lowest moment in the history of American courts since the Dred Scott case. The current generation of state constitutional decisions reviewing tort reform legislation are 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. The lesson of this interaction, however, is not simply to legitimate the current generation of state court decisions by providing them with historical precedents. Constitutional interventions into the making of American tort law have led American state courts into some of their most ill-fated decisions. In particular, constitutional interventions to block the enactment of workmen’s compensation statutes at the opening of the twentieth century produced political attacks on the legitimacy of judicial review that almost stripped state courts of their power to provide binding review of legislation. The history of the American constitutional law of torts, in short, is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected. I. An Introduction to State Constitutions For much of the twentieth century, state constitutions were a backwater in American law. As one widely commented-on survey found, in the late 1980s only one in two Americans even know their state has a constitution (Kincaid 1988). Experts in matters of state constitutional law
「2004 State Constitutions and American Tort Law-Witt regularly bemoan the paucity of attention paid to their field by the profession more generally(e. g, Williams 1999; Hershkoff 1993). Indeed though the earliest state constitutions predate the widely revered federal constitution by more than twenty years, they remained largely ignored by lawyers and lay-people alike for much of the last century Yet state constitutions are critically important documents in our system of governance. The Supremacy Clause of the U.S. Constitution provides that federal law is supreme even a mere federal regulation trumps state law, even state constitutional law. But the U.s. Constitution. as political scientist Donald Lutz has noted, is an"incomplete text"(Lutz 1988). It enumerates certain areas of authority for the federal government, but outside those areas it takes for granted that power will be left in the hands of the states. In turn, the governments of those states are constituted y state constitutions, which(so long as they create a"republican form of government"and otherwise comply with federal law, including the federal constitution) have wide discretion to establish the systems of governance within the state as the constitution-makers see fit. State constitutions. in Lutz's formulation, complete " the text of American constitutionalism State constitutions not only complete American constitutionalism they sometimes threaten to overwhelm it. For the most remarkable distinctions between the practice of state constitutions in the United States and the practice of the federal constitution are the length and detail of many state constitutions and the regularity with which state constitutions are revised. amended. and even redrafted. State constitutions cover an enormously wide range of topics, from freedom of speech and the death penalty to"ski trails and highway routes, public holidays and motor vehicle revenues"(Tarr 1998, 2). In length, they average three-times the length of the federal constitution. The fifty state constitutions currently in force average about 120 amendments each, for a total of more than 5,900 amendments adopted out of some 9, 500 proposed amendments(Tarr 1998, 24). And yet in a sense the historical constitutions of the states dwarf even this. Americans have held over 230 constitutional conventions. They have S Const. art. 6 US. Const.art.4,§4
[2004] State Constitutions and American Tort Law – Witt 5 1 U.S. Const. art. 6. 2 U.S. Const. art. 4, § 4. regularly bemoan the paucity of attention paid to their field by the profession more generally (e.g., Williams 1999; Hershkoff 1993). Indeed, though the earliest state constitutions predate the widely revered federal constitution by more than twenty years, they remained largely ignored by lawyers and lay-people alike for much of the last century. Yet state constitutions are critically important documents in our system of governance. The Supremacy Clause of the U.S. Constitution provides that federal law is supreme – even a mere federal regulation trumps state law, even state constitutional law.1 But the U.S. Constitution, as political scientist Donald Lutz has noted, is an “incomplete text” (Lutz 1988). It enumerates certain areas of authority for the federal government, but outside those areas it takes for granted that power will be left in the hands of the states. In turn, the governments of those states are constituted by state constitutions, which (so long as they create a “republican form of government”2 and otherwise comply with federal law, including the federal constitution) have wide discretion to establish the systems of governance within the state as the constitution-makers see fit. State constitutions, in Lutz’s formulation, “complete” the text of American constitutionalism. State constitutions not only complete American constitutionalism, they sometimes threaten to overwhelm it. For the most remarkable distinctions between the practice of state constitutions in the United States and the practice of the federal constitution are the length and detail of many state constitutions and the regularity with which state constitutions are revised, amended, and even redrafted. State constitutions cover an enormously wide range of topics, from freedom of speech and the death penalty to “ski trails and highway routes, public holidays and motor vehicle revenues” (Tarr 1998, 2). In length, they average three-times the length of the federal constitution. The fifty state constitutions currently in force average about 120 amendments each, for a total of more than 5,900 amendments adopted out of some 9,500 proposed amendments (Tarr 1998, 24). And yet in a sense the historical constitutions of the states dwarf even this. Americans have held over 230 constitutional conventions. They have
6 State Constitutions and American Tort Law-Witt adopted no fewer than 146 constitutions. Some note that as compared to the veritable orgy of constitutional drafting and redrafting in the nineteenth century, state constitution-making has slowed in the twentieth century (e.g Henretta 1991). And yet even in the twentieth century alone, eighteen states ratified entirely new constitutions. Ten states did so after 1960(Tarr 1991; Grad 1968). Taking just the seven years from 1986 to 1993, there were no fewer than fifty-two amendments to state declarations of rights alone(Tarr 1998, 13) Given the length and detail of the american state constitutions, it should hardly be surprising that they have come to have significant bearing on modern debates over tort reform. Beginning in the mid-1970s, liability insurers, product manufacturers, and other repeat-play tort defendants began a concerted effort to enact laws that would limit tort liability that they contended had run amok. Typical tort reform legislation included statutory limitations on punitive damages awards(25 states)and statutory caps on damages for pain and suffering(23 states). Other reforms included limitations on plaintiffs' attorneys' fees; statutes of repose that protect products manufacturers and other potential defendants from suits for injuries caused by older products; and limitations on the common law joint- and-several liability rule, which often allowed a plaintiff to recover the full extent of her damages from any one defendant. In all, some 48 state legislatures enacted tort reform legislation of one sort or another(franklin & Rabin2001,788) Even as state tort reform efforts picked up, however, a parallel development got underway in state constitutional law. Plaintiffs responded to state tort reform by contending(among other things) that statutes that capped punitive damages, limited pain and suffering damages, and imposed new limitations periods on tort suits, violated provisions in state constitutions. As a result. for almost two decades now state courts have been asked to decide whether certain reforms in the law of torts are within the power of the state legislature of their state. The results of such constitutional challenges to tort reform statutes have been mixed. Courts have upheld challenges to tort reform legislation in at least 139 cases decided since the beginning of 1983 Tort Reform Laws Upheld 2001 And yet during the same time period, courts have struck do statutes as violations of state constitutions in at least eighthy-three cases
6 State Constitutions and American Tort Law – Witt adopted no fewer than 146 constitutions. Some note that as compared to the veritable orgy of constitutional drafting and redrafting in the nineteenth century, state constitution-making has slowed in the twentieth century (e.g., Henretta 1991). And yet even in the twentieth century alone, eighteen states ratified entirely new constitutions. Ten states did so after 1960 (Tarr 1991; Grad 1968). Taking just the seven years from 1986 to 1993, there were no fewer than fifty-two amendments to state declarations of rights alone (Tarr 1998, 13). Given the length and detail of the American state constitutions, it should hardly be surprising that they have come to have significant bearing on modern debates over tort reform. Beginning in the mid-1970s, liability insurers, product manufacturers, and other repeat-play tort defendants began a concerted effort to enact laws that would limit tort liability that they contended had run amok. Typical tort reform legislation included statutory limitations on punitive damages awards (25 states) and statutory caps on damages for pain and suffering (23 states). Other reforms included limitations on plaintiffs’ attorneys’ fees; statutes of repose that protect products manufacturers and other potential defendants from suits for injuries caused by older products; and limitations on the common law jointand-several liability rule, which often allowed a plaintiff to recover the full extent of her damages from any one defendant. In all, some 48 state legislatures enacted tort reform legislation of one sort or another (Franklin & Rabin 2001, 788). Even as state tort reform efforts picked up, however, a parallel development got underway in state constitutional law. Plaintiffs responded to state tort reform by contending (among other things) that statutes that capped punitive damages, limited pain and suffering damages, and imposed new limitations periods on tort suits, violated provisions in state constitutions. As a result, for almost two decades now state courts have been asked to decide whether certain reforms in the law of torts are within the power of the state legislature of their state. The results of such constitutional challenges to tort reform statutes have been mixed. Courts have upheld challenges to tort reform legislation in at least 139 cases decided since the beginning of 1983 (Tort Reform Laws Upheld 2001). And yet during the same time period, courts have struck down tort reform statutes as violations of state constitutions in at least eighthy-three cases
「2004 State Constitutions and American Tort Law-Witt (Tort Reform Laws Held Unconstitutional 2001) Not surprisingly, these cases have generated considerable attention: praise from plaintiffs'advocates and bitter opposition from defendants interests. And yet what neither side has realized is just how deeply such cases runs in the history of American law I. The Wrongful Death Statutes For much of the first century of tort reform in Congress and American state legislatures, tort reform meant legislation that expanded liability rather than contracted it. The first examples of this liability expanding reform were wrongful death statutes enacted beginning in 1847 At common law, tort actions were often said to expire with the plaintiff,a victim's estate had no survival action against a tortfeasor. nor did the victim's dependents have a wrongful death action against the tortfeasor Malone 1965; Witt 2000). 'After Lord Campbell's Act authorized actions for wrongful death by dependents in Great Britain in 1846, American states quickly followed, enacting statutes that typically provided for the recovery of damages in cases of death"caused by wrongful act, neglect, or default where the act, neglect, or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recove damages. The result was a dramatic expansion in tort liability and a significant redistribution of entitlements from tortfeasors to the families of victims. Where once damages had been generally unavailable in death cases, now tortfeasors confronted the prospect of significant damages And yet what is remarkable about the wrongful death statutes is how little constitutional litigation they generated. As the lead nineteenth-century authority on wrongful death observed,"the constitutionality of the various acts which give a remedy in case of death the enactment of wrongful ss. state wrongful death legislation was nderstood as substituting for rather ng the common law actions(Witt 200 740) An Act Requiring Compensation for Causing Death by Wrongful Act, Neglect, or Default, 847NY Laws chap. 450,$ 1, at 575
[2004] State Constitutions and American Tort Law – Witt 7 3 Several American jurisdictions allowed death actions prior to the enactment of wrongful death legislation Nonetheless, state wrongful death legislation was generally understood as substituting for rather than supplementing the common law actions (Witt 2000, 732-33, 740). 4 An Act Requiring Compensation for Causing Death by Wrongful Act, Neglect, or Default, 1847 N.Y. Laws chap. 450, § 1, at 575. (Tort Reform Laws Held Unconstitutional 2001). Not surprisingly, these cases have generated considerable attention: praise from plaintiffs’ advocates and bitter opposition from defendants’ interests. And yet what neither side has realized is just how deeply such cases runs in the history of American law. II. The Wrongful Death Statutes For much of the first century of tort reform in Congress and in American state legislatures, tort reform meant legislation that expanded liability rather than contracted it. The first examples of this liabilityexpanding reform were wrongful death statutes enacted beginning in 1847. At common law, tort actions were often said to expire with the plaintiff; a victim’s estate had no survival action against a tortfeasor, nor did the victim’s dependents have a wrongful death action against the tortfeasor (Malone 1965; Witt 2000).3 After Lord Campbell’s Act authorized actions for wrongful death by dependents in Great Britain in 1846, American states quickly followed, enacting statutes that typically provided for the recovery of damages in cases of death “caused by wrongful act, neglect, or default,” where the “act, neglect, or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages.”4 The result was a dramatic expansion in tort liability and a significant redistribution of entitlements from tortfeasors to the families of victims. Where once damages had been generally unavailable in death cases, now tortfeasors confronted the prospect of significant damages. And yet what is remarkable about the wrongful death statutes is how little constitutional litigation they generated. As the leading nineteenth-century authority on wrongful death observed, “[t]he constitutionality of the various acts which give a remedy in case of death
State Constitutions and American Tort Law-Witt has rarely been questioned(Tiffany 1893, 28). There are therefore virtually no reported mid-nineteenth-century cases recording arguments by defendants that the wrongful death statutes impermissibly reallocated rights from defendants to plaintiffs; the one reported case indicating that such an argument had been made gave the argument such short shrift that defendants no doubt shrank from making it again. At least in part, this may have been because most state wrongful death legislation was general in its application, applying across the board to all tort defendants rather than singling out some class of defendants. But even legislation in the New England states in the 1850s that authorized wrongful death actions only against common carriers produced no reported mid-century cases on the question whether such statutes impermissibly singled out some class of Regular constitutional challenges to state tort legislation began to ppear only after the Civil War in the mid 1870s. In the wrongful death cases, for example, the Georgia Supreme Court in 1874 upheld the constitutionality of the wrongful death provisions of the states employers liability law against a challenge that it impermissibly singled out railroads by applying only to railroad employees. More typical of late nineteenth- century constitutional cases involving wrongful death were challenges to follows. The Georgia Supreme Court responded to the defendants constitutional argument as As to the constitutional competency of the legislature to pass the act, there cannot a shadow of doubt: neither a corporation nor a citizen can have a vested right to do wrong, to take human life intentionally or negligently. To prevent so erious an evil, the General Assembly may compel the wrong-doer, whether private or corporate, to make pecuniary compensation. The act is general; applicable alike to all, and making no odious discriminations against railroads. he legislature might make a reckless destruction of life like this a capital felony on the part of the employees of the road, if it be not one already. And for myself I believe it would, as a preventive, be better to do this than to South-Western R.R. v Paulk, 24 Ga 356(1858) 1853 Conn. Pub. Acts chap. 7488, at 135: 1855 Maine Acts, chap. 161$ 1, at 160: 1840 Mass. Acts, chap. 80, at 224: 1850 N H. Laws, chap 953,$7, at 928: 1855 R I. Acts 1388, at 15:se so An Act Concerning Passenger Carriers, 1840 Mass. Acts chap. 80, at 224(creating a quasi-criminal liability in cases of passengers killed by the negligence or carelessness of common carriers) orgia rr Banking Co. V. Oaks, 52 Ga. 410(1874); see also Ballard v. Mississippi Cotton Oil Co., 34 So. 533(Miss. 1903); Mobile, J. &K.C. RR, 46 So. 360(Miss. 1908): Pensacola Electric Co. v. Soderlind, 53 So. 722(Fla. 1910)
8 State Constitutions and American Tort Law – Witt 5 The Georgia Supreme Court responded to the defendant’s constitutional argument as follows: As to the constitutional competency of the legislature to pass the act, there cannot be a shadow of doubt: neither a corporation nor a citizen can have a vested right to do wrong; to take human life intentionally or negligently. To prevent so serious an evil, the General Assembly may compel the wrong-doer, whether private or corporate, to make pecuniary compensation. The act is general; applicable alike to all, and making no odious discriminations against railroads. The legislature might make a reckless destruction of life like this a capital felony on the part of the employees of the road, if it be not one already. And for myself I believe it would, as a preventive, be better to do this than to treat human life as stock, to be paid for in money. South-Western R.R. v. Paulk, 24 Ga. 356 (1858). 6 1853 Conn. Pub. Acts chap. 74 § 8, at 135; 1855 Maine Acts, chap. 161 § 1, at 160; 1840 Mass. Acts, chap. 80, at 224; 1850 N.H. Laws, chap. 953, § 7, at 928; 1855 R.I. Acts 13 § 8, at 15; see also An Act Concerning Passenger Carriers, 1840 Mass. Acts chap. 80, at 224 (creating a quasi-criminal liability in cases of passengers killed by the negligence or carelessness of common carriers). 7 Georgia RR & Banking Co. V. Oaks, 52 Ga. 410 (1874); see also Ballard v. Mississippi Cotton Oil Co., 34 So. 533 (Miss. 1903); Mobile, J. & K. C. RR, 46 So. 360 (Miss. 1908): Pensacola Electric Co. v. Soderlind, 53 So. 722 (Fla. 1910). has rarely been questioned” (Tiffany 1893, 28). There are therefore virtually no reported mid-nineteenth-century cases recording arguments by defendants that the wrongful death statutes impermissibly reallocated rights from defendants to plaintiffs; the one reported case indicating that such an argument had been made gave the argument such short shrift that defendants no doubt shrank from making it again.5 At least in part, this may have been because most state wrongful death legislation was general in its application, applying across the board to all tort defendants rather than singling out some class of defendants. But even legislation in the New England states in the 1850s that authorized wrongful death actions only against common carriers produced no reported mid-century cases on the question whether such statutes impermissibly singled out some class of actors for special burdens.6 Regular constitutional challenges to state tort legislation began to appear only after the Civil War in the mid 1870s. In the wrongful death cases, for example, the Georgia Supreme Court in 1874 upheld the constitutionality of the wrongful death provisions of the state’s employers’ liability law against a challenge that it impermissibly singled out railroads by applying only to railroad employees.7 More typical of late nineteenthcentury constitutional cases involving wrongful death were challenges to
「2004 State Constitutions and American Tort Law-Witt damages provisions. At least one wrongful death statute -the statute in Missouri-opted not for a cap on damages but for a mandatory damages igure of $5,000 in death cases. Missouri courts upheld the mandatory damages provision in 1885 against constitutional challenges under state and federal jury trial and due process guarantees. More typically, however mid-century wrongful death legislation authorized the recovery only of pecuniary damages"and often set caps on those pecuniary damages usually at $3, 000 or $5,000. The interplay between these statutory provisions and state constitutional provisions relating to damages recoverable in tort produced a number of relatively minor, though locally significant, cases throughout the end of the nineteenth and beginning ofthe What is most significant about the late nineteenth century rtional law of wrongful death however. is not so much the constitutional decisions of state courts but rather the enactment of new state constitutional provisions expressly addressing torts issues. In particular, democratic dissatisfaction with statutory caps on damages in death cases produced a wave of state constitutional provisions and amendments. State courts, after all, are not the only makers of state constitutional law. The people of a state have the opportunity to amend and redraft their constitutions, and in the late nineteenth century a number of states did just that to abolish and prohibit statutory limits on the damages recoverable in death cases. Pennsylvania led the way here, providing in its constitution of 1874 that the General Assembly could not"limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property. That same year, Arkansas adopted a similar bar on statutory limits on recoveries Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, nd Wyoming. By the 1890s, caps in the District of Columbia, Indiana, Kansas, Nev Hampshire, Ohio, Oklahoma, Utah, Virginia, and West Virginia had been lifted to between $7, 000 and s20.000 Tiffany1893,175-76) Marchv. Walker, 48 Tex 372(1977); Richmond&D.R. Co v. Freeman, 11 So.800(Ala. 892), Wright v. Woods'Administrator, 27S.w.979(Ky. 1894); Louisville N.R. Co. V. Lansford 102 F 62(1900); Brickman v Southern Ry, 54S.E553(SC. 1906), Hull v Seaboard Air Line Ry, 57 SE.28(1907) P
[2004] State Constitutions and American Tort Law – Witt 9 8 Carroll v. Missouri Pac. Ry, 88 Mo. 239 (1885). 9 States with damages caps under their wrongful death statutes included Colorado, Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, Wisconsin, and Wyoming. By the 1890s, caps in the District of Columbia, Indiana, Kansas, New Hampshire, Ohio, Oklahoma, Utah, Virginia, and West Virginia had been lifted to between $7,000 and $20,000 (Tiffany 1893, 175-76). 10March v. Walker, 48 Tex. 372 (1977); Richmond & D.R. Co. v. Freeman, 11 So. 800 (Ala. 1892); Wright v. Woods’ Administrator, 27 S.W. 979 (Ky. 1894); Louisville & N.R. Co. V. Lansford, 102 F. 62 (1900); Brickman v. Southern Ry, 54 S.E. 553 (S.C. 1906); Hull v. Seaboard Air Line Ry, 57 S.E. 28 (1907). 11Pa. Const. of 1874, art. III, § 21. damages provisions. At least one wrongful death statute – the statute in Missouri – opted not for a cap on damages but for a mandatory damages figure of $5,000 in death cases. Missouri courts upheld the mandatory damages provision in 1885 against constitutional challenges under state and federal jury trial and due process guarantees.8 More typically, however, mid-century wrongful death legislation authorized the recovery only of “pecuniary damages” and often set caps on those pecuniary damages, usually at $3,000 or $5,000.9 The interplay between these statutory provisions and state constitutional provisions relating to damages recoverable in tort produced a number of relatively minor, though locally significant, cases throughout the end of the nineteenth and beginning of the twentieth centuries.10 What is most significant about the late nineteenth century constitutional law of wrongful death, however, is not so much the constitutional decisions of state courts but rather the enactment of new state constitutional provisions expressly addressing torts issues. In particular, democratic dissatisfaction with statutory caps on damages in death cases produced a wave of state constitutional provisions and amendments. State courts, after all, are not the only makers of state constitutional law. The people of a state have the opportunity to amend and redraft their constitutions, and in the late nineteenth century a number of states did just that to abolish and prohibit statutory limits on the damages recoverable in death cases. Pennsylvania led the way here, providing in its constitution of 1874 that the General Assembly could not “limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.”11 That same year, Arkansas adopted a similar bar on statutory limits on recoveries
State Constitutions and American Tort Law-Witt in cases of fatal and nonfatal injuries. 2 Wyoming(1889), Kentucky (1890),and Arizona(1912)followed. Oklahoma made the availability of wrongful death actions in cases for which a plaintiff could have recovered" had death not occurred" part of its constitution in 1907. And New York(1894), Utah(1896), and Ohio(1913) prohibited statutory damages maxima in death cases. Indeed, late nineteenth and early twentieth century state constitution makers included an array of specific tort law provisions in their constitutions. Texas's 1876 constitution provided that those who committed homicides by wilful act and gross neglect were liable for exemplary damages to the decedents survivors. Colorados 1876 constitution barred employers from requiring their employees to waive their tort rights against the employer as a condition of employment Wyomings 1889 constitution did the same, and also provided for tort ctions on behalf of miners injured or killed because of the violation of the constitution's rules regarding mines and mining 23 Mississippi's infamous 1890 Jim Crow constitution mandated exceptions to employers'common law defenses in employers' liability cases; established the availability of wrongful death actions; and prohibited waivers of tort liability as a condition of employment. Oklahoma's 1907 constitution provided that the defenses of contributory negligence and assumption of the risk were"in all cases whatsoever"a"question of fact and therefore"at all times "to be 12 Ark const of 1874,$ 32 Arizona Const, art. 2,$31 IN.Y. Const of 1894, art. 1,$18 %ohio Const, art. 1, $ 19a. ex Const of 1876. art. XV IColo Const of 18 wyo Const Of 1889, art.9, $4 Miss. Const, art. 7, 8193
10 State Constitutions and American Tort Law – Witt 12Ark. Const of 1874, § 32. 13Wyo. Const. of 1889, art. 10, § 4. 14Ky. Const of 1890, § 54. Kentucky’s 1890 constitution also constitutionalized the theretofore statutory wrongful death cause of action. See Ky. Const. Of 1890, § 241. 15Arizona Const., art. 2, § 31. 16Okla. Const. of 1907, art. 9, § 36. 17N.Y. Const. of 1894, art. I, § 18. 18Utah Const., art. XVI, § 5. 19Ohio Const., art. I, § 19a. 20Tex. Const. of 1876, art. XVI, § 26. 21Colo. Const. of 1876, art. 15, § 15. 22Wyo. Const. of 1889, art. 19, § 7. 23Wyo.Const. Of 1889, art. 9, § 4. 24Miss. Const, art. 7, § 193. in cases of fatal and nonfatal injuries.12 Wyoming (1889),13 Kentucky (1890),14 and Arizona (1912)15 followed. Oklahoma made the availability of wrongful death actions in cases for which a plaintiff could have recovered “had death not occurred” part of its constitution in 1907.16 And New York (1894),17 Utah (1896),18 and Ohio (1913)19 prohibited statutory damages maxima in death cases. Indeed, late nineteenth and early twentieth century state constitution makers included an array of specific tort law provisions in their constitutions. Texas’s 1876 constitution provided that those who committed homicides by wilful act and gross neglect were liable for exemplary damages to the decedent’s survivors.20 Colorado’s 1876 constitution barred employers from requiring their employees to waive their tort rights against the employer as a condition of employment.21 Wyoming’s 1889 constitution did the same,22 and also provided for tort actions on behalf of miners injured or killed because of the violation of the constitution’s rules regarding mines and mining.23 Mississippi’s infamous 1890 Jim Crow constitution mandated exceptions to employers’ common law defenses in employers’ liability cases; established the availability of wrongful death actions; and prohibited waivers of tort liability as a condition of employment.24 Oklahoma’s 1907 constitution provided that the defenses of contributory negligence and assumption of the risk were “in all cases whatsoever” a “question of fact” and therefore “at all times” to be