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, Schwartz2 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