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Open Access Publications from the University of California

A Century of Change in Personal Injury Law

  • Author(s): Sugarman, Stephen D.
  • et al.

The 20th century witnessed enormous change in American personal injury law. Over the past 100 years, torts has emerged out of a largely ineffective backwater of the law. Today, tort doctrine has coalesced around a robust law of negligence, anchored not only in contemporary concerns about fairness, but also in considerations of loss spreading and safety promotion. Over the course of the 20th century, cultural change, change in the legal and other professions, changes in civil procedure and evidence law, the development of liability insurance, and more have made it both much easier and far more natural for accident victims to sue in tort. Work, home, and leisure activities have also altered dramatically between 1900 and 2000, thereby sharply changing the nature of the accidents that Americans now suffer, as compared with the past. During this same era, some important categories of injuries were fully or partly removed from personal injury law, and tort failed to take hold in certain other areas which instead have come to be handled by other parts of our legal system. The 20th century has also seen the development of both broad public and private insurance schemes (social security and group health insurance) and modern regulatory agencies (like the FDA) that have also altered the role of personal injury law.

The upshot is that the size and nature of the personal injury law system in the year 2000 differs enormously both from the system in place in the year 1900 and from what it might have been in the year 2000. Vital areas of tort law's realm today, like auto, medical malpractice and product liability cases, are essentially 20th century developments; yet important 20th century concerns about discrimination and the environment are little impacted by tort law. Nevertheless, many of the shortcomings of personal injury law in 1900 that led to worker's compensation as a replacement for tort in the case of occupational injuries still plague tort law's operation in 2000. However, the dramatic rise in the availability and amount of damages plaintiffs can obtain for pain and suffering, as well as the dramatic rise in the political and economic power of plaintiffs' lawyers, make future reform of tort law quite uncertain. As a result, tort law in the 21st century may be as exciting a field in which to teach, write and practice as it has been for much of the 20th.

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