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