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Defunct causes of action, cont'd

The fascinating article on "Why Torts Die" that Ted points out, aside from its intrinsic interest, is also relevant to an issue of great current importance, namely the extent to which it is permissible to roll back the scope of existing common law liability without fear of committing any constitutional violation.

As readers of this site probably know, the organized plaintiff's bar has been extraordinarily successful in getting state judges to strike down, as inconsistent with their states' constitutions, liability limits enacted by the elected lawmakers of their states. The grounds for such invalidation vary from state to state -- sometimes the reforms are declared at variance with "open courts" clauses of state constitutions, on the theory that to abrogate a long-recognized cause of action (or even curtail modestly the damages available under it) somehow amounts to abrogating the very right to redress grievances as such. Sometimes a curious theory of separation of powers is advanced in which the setting of liability rules is regarded as somehow internal to courts and not to be meddled with by mere legislators (of course those legislators are welcome to add new grounds for liability, so long as they don't narrow old ones).

Of course, the barest acquaintance with American legal history suffices to make clear that many damage actions once recognized as valid under common law have been abolished both by courts themselves, and by legislatures with the later approval of courts. Perhaps best known are various employment actions. Employees formerly had a direct right to sue employers over job injuries, which was largely abolished as part of the enactment of workers' comp laws; and employers once had a direct right to sue over certain costs inflicted by labor unrest, such as the blockage of plant gates by picketing, which was largely abolished by New Deal-era labor laws.

Those opposed to legislative encroachments on tort liability sometimes claim that the difference is that in the employment cases, liability was abrogated as part of an overall trade in which the party deprived of rights to sue was accorded valuable alternative rights: thus the injured employee could pursue benefit payments under workers' comp laws, while the blockaded employer might press a complaint before the National Labor Relations Board and in other ways might benefit from the legal regularization of labor relations. By contrast, legislative curtailment of (say) non-economic damages in medical malpractice cases is not ordinarily offset by the creation of any new no-fault scheme of compensation. Thus (it is argued) courts should feel free to strike down such damage limits, since they form no part of a comprehensive legislated scheme providing alternative benefits for patients.

As I've been pointing out for years, there's a big problem with the theory that a tort somehow cannot be abolished or curtailed in the absence of a legislated alternative compensation scheme. Earlier in the Twentieth Century, state legislatures took a prominent hand in the abolition of the once thriving set of torts known as "heartbalm", actions that included breach of promise of marriage, alienation of affections, and criminal conversation (sexual relations with complainant's spouse). No alternate system of legislated compensation whatsoever was provided for jilted brides, cuckolded husbands and so forth; their losses were simply left to lie where they fell. Nor did courts seize on this circumstance to invalidate legislative curtailments of heartbalm and proclaim that once a common law tort, always a common law tort.

Kyle Graham's article serves as a very handy compendium of other once-valid actions that have faded away, or been abolished perforce, with no suggestion that anyone enjoyed a constitutionally protected right to go on suing under them. They range from suits against taverns by spouses of alcoholics seeking compensation for their lost earnings (popular in the heyday of Temperance) to the old nuisance action of "ancient lights" (against the erection of nearby sunlight-blocking buildings), which retained vitality in Britain but mostly not here. Ironically, the list of defunct torts also includes the old common law right to sue the perpetrator of champerty and maintenance -- that is, to sue a third party who furnished one's opponent's the means to keep his lawsuit going. The AAJ/ATLA lawyers who assail as unthinkably outrageous the abolition of any and every common law right to sue are unlikely to go to bat for the revival of that one.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.