「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 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).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