Front Page Titles (by Subject) 19th-Century Tort Law & Industry - Literature of Liberty, Autumn 1982, vol. 5, No. 3
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19th-Century Tort Law & Industry - Leonard P. Liggio, Literature of Liberty, Autumn 1982, vol. 5, No. 3 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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19th-Century Tort Law & Industry
“Tort Law and the Economy in Nineteenth Century America: A Reinterpretation.” The Yale Law Journal 90 (8) 1981: 1717 – 1775.
A prevailing view among American tort law historians maintains that nineteenth-century tort doctrine was deliberately structured to accommodate the economic interests of emerging industry. According to these scholars, American courts jettisoned a potent prenineteenth-century rule of strict liability in favor of a lax negligence standard, leniently applied that standard to enterprise defendants, administered a severe defense of contributory negligence, and placed strong controls on negligence law under the name of “duty.” Prof. Schwartz' article systematically challenges these premises first by assembling pre-nineteenth-century background material in tort law cases and then by examining important nineteenth-century tort cases tried in the states of New Hampshire and California.
A study of pre-1800 English tort doctrine and of early American models reveals no consistent distinction drawn between areas covered by strict liability and those governed by a negligence standard. Ambivalence more than clarity predominated in the application of these norms to such disparate areas as fire, collision, animal, and employer cases. Prof. Schwartz finds however that the available evidence disputes the notion of a strong pre-nineteenth-century strict liability tradition. Instead, strict liability strands in older English and early U.S. law seem blurred, while the negligence strands appear both more distinct and capable of extended application.
Turning to New Hampshire and California case law, Schwartz disputes the notion that the nineteenth-century negligence system can properly be characterized or disparaged as an industrial subsidy. On the contrary, the Supreme Courts of the two states expanded on the negligence standard in ways that rendered it both ambitious and demanding—narrowing in the process the gap between negligence and strict liability. Far from erecting a duty pre-requisite to every tort claim, the Courts easily recognized that everyone has a general duty to everyone else to avoid negligent behavior.
The record in New Hampshire and California reveals no tendency on the part of judges to shelter emerging industries from what otherwise would be their liability in tort. If anything, novel forms of risk taking generated by the profit motive were viewed with enhanced, rather than reduced, suspicion. To this extent, the Courts were less influenced by, than initiators of, populist impulses.
Schwartz cites numerous examples of this judicial populism. Despite the importance of turnpikes and especially textile mills to New Hampshire's economy in the early nineteenth century, the state's Court subjected both turnpike and textile companies to emphatic liabilities. Railroads loomed large in the latter half of the century, yet, in the New Hampshire and California Courts, railroad companies suffered defeat on the vast majority of contested issues. In opinions animated by a concern for safety, the California Court spurned a power company's implicit request for a liability rule subsidy and held newly formed elevator companies to exacting liability standards.
Thus, the theory that nineteenth-century tort law was designed to benefit private economic interests is misleading. Evidence from two states shows that the Courts, in implementing the negligence system, were solicitous of victim welfare and generally bold in the liability burdens they imposed on corporate defendants. The overall performance of tort law in the two states studied need not be disowned as offensive or discreditable. In truth, the evidence indicates a surprising continuity between nineteenth-century tort law and the law we now recognize in the late twentieth century.