「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