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In the modern tort reform movement that dates to the mid-1970s, courts have struck down a number of reform statutes 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 outer bounds on the legislative power to alter the rules of tort law. In many relatively 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 limited 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 to an illegitimate legislative taking. But on those occasions in which courts reached outside these limited rationales to strike down legislative changes in the common law of torts, courts caused political uproar and helped to bring on themselves the great Progressive Era court crisis. In particular, constitutional interventions to block the enactment of workmen's compensation statutes at the opening of the twentieth-century produced political attacks on the legitimacy of judicial review that nearly stripped state courts of their power to review the constitutionality of legislation.

The long history of the American constitutional law of torts is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected.

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