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Abstract

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other side. This debate began as early as the late Nineteenth Century and the interests and arguments advanced in the debate have remained relatively constant. Second, contrary to the academic construction, there is nothing new about the political nature of the current tort reform debate, nor was judicial involvement in the development of tort law unique to tort expansion. Rather, both sides of the debate have resorted to both the judicial and political branches in the battle over tort reform and political battles have been waged by interested actors on both sides. Third, as a result of this scholarly neglect of Progressive Era history, the debate about the validity of state tort reform measures has focused primarily on traditional areas of constitutional inquiry. Instead, a focus on Progressive Era history would direct one to several Progressive Era constitutional provisions aimed at altering the balance of power among the legislature, the judiciary and the jury with respect to common law tort remedies.

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