Cristina Tilley on Tort in the Age of the Constitution

Professor Cristina Tilley (Iowa Law) has posted to SSRN her article, The Power of All: Tort in the Age of Constitution, Marq. L. Rev. (forthcoming 2024).  Here is the abstract:

Life in a multicultural nation can be fraught. The United States is a case in point, with hostile tension between members of competing identity groups playing out today on streets, in offices, and across the media. Modern Americans assume that bridging race, gender, and class inequity is the stuff of public – constitutional – law. This assumption follows the lead of modern American lawyers, who migrated to this body of law just as historians, sociologists, and economists began to insist that the private law of tort was exclusively concerned with the accidental physical harms inevitable in a modern economy. According to this econostory, tort has no role to play in addressing individual dignitary harms inevitable in a multicultural society. Joseph Ranney’s book, The Burdens of All: A Social History of American Tort Law, is one of the most deeply researched and reasoned entries in this canon, and was the rightful centerpiece of Marquette University Law School’s 2023 Conference, Tort Law: What Can We Learn from Where It Has Been? In this response, originally offered as a keynote talk at that conference, I celebrate Ranney’s achievement. But I also challenge him and fellow econohistorians of tort to reckon with the lost origins of American personal injury law. It turns out that in the pre-Industrial, Founding era, localized juries drawn from the community were often asked to intervene when women, enslaved people, and the poor claimed that neighbors degraded them because of their social characteristics. These claims were not uniformly successful, but they were a legal invitation for the community to examine its social norms and adjust them to stigmatize disfavored interpersonal conduct. As I recount, this private dignitary forum was dismantled when tort was reimagined as a quasi-regulatory system to optimize resource allocation. The quest for individual dignity was ultimately reassigned in the twentieth century to Article III courts, which updated and expanded their reading of the Constitution to integrate members of suspect classes more fully into public life. But while constitutional pronouncements can force system-level equity rules for schools, workplaces, police forces, and the like, they cannot touch the private worldviews of the people found in those systems. The Burdens of All acknowledges that American tort has always fluctuated to manage the social tensions of the day. I suggest it may be time for a twenty-first century fluctuation. Excavating tort’s original purpose as an instrument of interpersonal dignity provides a template to build out a robust private law of social justice for the modern era.