Chapter 1. A 4,000 Year Perspective on Tort Law - Modern Times

Following is an excerpt from Shigley & Hadden, Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters / Westlaw, 2010- present). The lead author, Kenneth L. Shigley, has served as president of the State Bar of Georgia (2011-12), chair of the Institute for Continuing Legal Education in Georgia Board of Trustees (2012-13) and chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section (2015-16). The entire book may be purchased at ThomsonReuters.com or accessed through Westlaw.

1:5. Modern Times

In the late nineteenth century, defenses that had essentially immunized employers from liability to injured workers began to erode. In response, employers began to purchase a new innovation, liability insurance. The market for liability insurance expanded ninety-fold in nineteen years from 1887 to 1906.1 This helped bring about the “tort reform” of workers' compensation, in which there was a tradeoff of a relatively certain though modest compensation for injured workers in exchange for limitation of employers' exposure, eventually followed by other social safety nets such as Social Security disability, Medicare, Medicaid and first-party medical insurance.

In the twentieth century, the proliferation of automobiles, highways, and installment credit influenced virtually every aspect of American life, including the rise of state financial responsibility laws requiring automobile liability insurance. The symbiotic relationship between tort law and liability insurance rapidly grew. Over the same time period, the complexity of manufacturing and commerce helped give rise to theories of product liability.2 Tort law and insurance, joined at the hip, became as American as automobiles and fast food.

By the last quarter of the twentieth century there was a backlash, largely promoted and funded by business and insurance organizations, and ingeniously labeled “tort reform.” (“Reform” sounds generically good, and most citizens have no idea what a “tort” is, unless it is a French pastry.) Waves of tort reform advocacy have rolled through the body politic since the 1960s, with each new impetus for legislation to restrict liability roughly coinciding with declines in investment returns for the insurance industry.3 At the same time, procedural tort reform measures4 designed to favor defendants and constrict the practical availability of recovery for personal injury plaintiff have been developed through prominent think tanks5 and made their way through the American Law Institute, the Federal Rules of Evidence Advisory Committee, and the Federal Rules of Civil Procedure Advisory Committee of the Judicial Conference of the United States.

Tort reform is nothing new. No one knows which way the law on compensation for injury will change during the working life of lawyers reading this book. The scope of what we now categorize as tort law has gone through many cycles of expansion and contraction in reaction to changes in social, economic and technological conditions, as well as competing economic interests and conflicting views of personal and social virtue, for four thousand years. If mankind survives, tort law will likely to continue to reform in cycles far into the unseeable future, long after the author's and reader's labors have ceased.




1 David A. Fischer & Robert H. Jerry, Teaching Torts Without Insurance: a Second-best Solution, 45 St. Louis U. L.J. 857 (Summer 2001).

2 David A. Fischer & Robert H. Jerry, Teaching Torts Without Insurance: a Second-best Solution, 45 St. Louis U. L.J. 857 (Summer 2001); G. Edward White, Tort Law in America: An Intellectual History (2003).

3 See generally Michael P. Allen, a Survey and Some Commentary on Federal “Tort Reform,” 39 Akron L. Rev. 909 (2006); Christopher J. Roederer, “Democracy and Tort Law in America: the Counter-revolution,” 110 W.Va. L. Rev. 647 (Winter 2008); Joshua D. Kelner, “The Anatomy of an Image: Unpacking the Case for Tort Reform,” 31 U. Dayton L. Rev. 243 (2006).

4 See, e.g., Bernstein, Procedural Tort Reform: Lessons from Other Nations, 19 Regulation: The Cato Rev. of Bus. & Gov't 71, 79-81 (1996), available at http://www.cato.org/pubs/regulation/regv19n1/v19n1-8.pdf.

5 See e.g., Walter Olson, Sue City: The Case Against the Contingency Fee, Pol'y Rev. Winter 1991, at 47, 50; W. John Moore, Peter Huber; Free-Lance Critic Hits Shackles of Regulation, Nat'l J., Nov. 15, 1986, at 2797, 2797 (quoting Victor E. Schwartz); Peter W. Huber, Hard Green: Saving the Environment from the Environmentalists (A Conservative Manifesto) (2000); Peter Huber, Judging Science: Scientific Knowledge and the Federal Courts (1997); Peter Huber, Law and Disorder in Cyberspace: Abolish the FCC and Let Common Law Rule the Telecoms (1997); Peter Huber, Orwell's Revenge: The 1984 Palimpsest (1994); Peter Huber, Phantom Risk: Scientific Inference and the Law (1993); Peter Huber, Galileo's Revenge: Junk Science in the Courtroom (1991); Peter Huber (editor), The Liability Maze (1991) Peter Huber, Liability: The Legal Revolution and Its Consequences (1988); Peter Huber, Coping with Phantom Risks in the Courts, 6 Risk 111 (1995); Peter Huber, Public Versus Private Environmental Regulation, 21 Ecology L. Q. 445 (1994); Peter Huber, Junk Science in the Courtroom, 26 Valparaiso L. Rev. 723 (1992) (“Sixth Monsanto Lecture”); Peter Huber, A Comment on “Toward Incentive-based Procedure: Three Approaches for Regulating Scientific Evidence” by E. Donald Elliott, 69 B.U. L. Rev. 513 (1989); Peter Huber, Liability: The Legal Revolution and its Consequences (1988); Peter Huber, Safety and the Second Best: The Hazards of Public Risk Management in the Courts, 85 Colum. L. Rev. 277 (1985); Peter Huber, The Old-new Division in Risk Regulation, 69 Va. L. Rev. 1025 (1983). See also Gary Edmond & David Mercer, Trashing “Junk Science,” 1998 Stanford. Tech. L. Rev. 3 (1998); Kenneth J. Chesebro, Galileo's Retort: Peter Huber's Junk Scholarship, 42 Am. U. L. Rev. 1637 (1993); Jerry Kang, Rebel Without a Cause (review of Galileo's Revenge), 105 Harvard. L. Rev. 935 (1992).

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