Tort Law and the Construction of Change studies the interaction of law and social change in American history. Tort law-civil law made by judges, not legislators-is traditionally thought to arise out of legal precedent. But Kenneth S. Abraham and G. Edward White show that American judges over the course of the previous two centuries also paid close attention to changing societal contexts in which lawsuits for civil injuries arose. They argue that two versions of history-one grounded in the application of previous legal rules and the other responsive to larger societal changes-must be considered in tandem to grasp fully how American civil law has evolved over time. In five fascinating chapters, they cover understudied areas of tort law, such as liability for nonphysical harm-including lawsuits for defamation, privacy, emotional distress, sexual harassment, and the hacking of confidential information-and aspects of tort litigation that have now disappeared, such as the prohibition against ""interested"" parties testifying in civil actions or the intentional infliction of temporal damage without justification. What emerges is a picture of the complicated legal dance American judges performed to cloak their decisions to make at times radical changes in tort law in response to social transformations. When confronting established tort doctrines under pressure from emerging social changes, they found ways to preserve at least the appearance of doctrinal continuity.
Kenneth S. Abraham and G. Edward White both hold the position of David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law and have written twenty-two award-winning books between them, including most recently The Forms and Functions of Tort Law and Law in American History: Volume Three, 1920-2000, respectively.
Preface Introduction 1. The Epistemology of the Civil Trial and the Rise of Modern Tort Liability 2. Conceptualizing Tort Law-the Continuous(and Continuing) Struggle 3. The Problem of the Dignitary Torts 4. The First Amendment and the Constitutionalization of Tort Liability 5. Torts without Names, New Torts, and the Future of Liability for Intangible Harm Conclusion Notes Index
This timely, lucid, and compelling book offers fresh and insightful treatments of important topics in tort law and law more generally, demonstrating at a granular level the phenomenon of law as a semi-autonomous institution."- John C.P. Goldberg, Harvard Law School, coauthor of Recognizing Wrongs "Abraham and White present as powerful an argument as possible for a distinctively lawyers' logic in the management of social change. This book makes readers stop and think anew about the role of law in a changing world and will appeal to anyone interested in figuring out a path out of our present predicaments. An important intervention in the field"- John Fabian Witt, Yale Law School, author of The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law
