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.
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