Tort Law at the Founding

In his influential History of American Law, Lawrence Friedman suggests that tort law was “totally insignificant” prior to the late Nineteenth Century. Implicit in this assessment is a judgment that a body of law is significant only insofar is it addresses a large-scale social problem as such. This criterion stacks the deck against tort law, which is not law of this kind. Rather, it is a law of civil recourse. In fulfillment of a governmental responsibility to its citizens, tort defines a certain kind of wrong and empowers victims of this kind of wrong to obtain redress from wrongdoers. Written for a 2011 symposium held at Florida State University, this essay melds the insights of civil recourse theory with recent historical scholarship to demonstrate that tort law was central to American legal practice and legal thought long before the Industrial Revolution. In fact, the tort notion of civil recourse set the terms on which this nation was founded. Quite self-consciously, Jefferson cast the Declaration of Independence in the language of civil recourse; the Declaration is our founding lawsuit. The inclusion of the Alien Tort Statute in the Judiciary Act of 1789 and the emergence of the nineteenth-century congressional practice of indemnifying officials for their tort liabilities further demonstrate our early embrace of the core tort notion that government bears a responsibility to provide citizens with law for the recourse of wrongs