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“Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First-Party Insurance Movement,” 114 Harvard Law Review 690 (2001)


There are two strange discontinuities in accounts of the history of American accident law. First, the historical literature's narrow focus on the common law of tort contrasts sharply with the eclectic approach of contemporary accident law scholars. Contemporary accident law debates offer a wide array of policy alternatives to tort litigation. To name only some of the most prominent, scholars have proposed increased reliance on first-party insurance, various no-fault insurance schemes, markets in unmatured tort claims, and expanded state compensation plans for accidents beyond the sphere of work accidents. Similarly, recent descriptions of our contemporary accident law system characterize it as made up of a number of different kinds of institutions, ranging from tort law to private and public insurance programs to no-fault compensation schemes. Yet histories of American accident law are remarkable for the absence of alternative models. Indeed, the singular feature of our accounts of the development of American accident law is their central concern, one might say obsession, with the tort case.

Second, the history of accident law in the United States is usually recounted as separate and apart from the main currents of the political and legal history of the nineteenth and twentieth centuries. To be sure, the great waves of industrialization in the American economy have always been, and will surely always remain, a central interpretive tool in explaining changes in the nineteenth- and twentieth-century law of torts. Nonetheless, tort law exists only at the margins of our histories of the great battles to define the character of industrializing America. Labor movement opposition to the spread of wage labor, struggles between capitalists and laborers in the workplace, and the political groundswell of farmers' and agrarian parties have been the central themes of the histories of the critical half century following the end of the Civil War, and these themes have rarely included debates and struggles over the law of accidents. Instead, accident law has generally been treated as a player at the edges of a great conflict. Tort law, our histories assume, is not about the structure of the underlying economic system, but rather about addressing the messy by-products of that system. In our own time, after all, most scholars and policy-makers view accident law as an instrument to facilitate market economies by minimizing the economic costs of accidents. And so, scholars often look back and see in past tort regimes the same approach. At the very least, scholars tend to assume that accident law did not implicate the basic structures of political and social life. Thus the histories of the main currents of American political and social history make the tacit claim that the way in which the law dealt with the accidents produced by capitalism had little to do with the ongoing struggles over the legitimacy of the capitalist system itself. For the story of that struggle, our histories look elsewhere.

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