Legal Theory Blog

American lawyers, judges, and scholars have been lulled into believing that tort law originated to manage nineteenth century industrial growth. This account of tort as a tool of private market efficiency has effortlessly dominated modern injury law. But it deliberately slices away from the American tort story cases that occupied courts and communities during the country’s pre-industrial Founding decades. Excavate those cases, and the American tort story gets more interesting. It turns out that for the country’s first thirty years, tort was the primary site for adjudication of social status relationships within local communities. The intentional torts of battery, assault, false imprisonment, nuisance, slander, seduction, and trespass to land and chattels are ubiquitous on founding era dockets. These cases brought citizens together to develop and announce shared norms about the behavior owed to neighbor-litigants, often women, enslaved people, or the poor. Tort was where the earliest American struggles over identity subordination and equal humanity played out. Put simply, tort was the original law of social justice.