In 1789 and afterwards, when colonies became states, most state legislatures passed “reception statutes.” These often-forgotten parts of state law history “received” the common law of England as of that date and, more importantly, empowered the courts to develop the common law in light of “reason and experience.” See Victor E. Schwartz & Leah Lorber, “Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance,” 32 Rutgers L.J. (2001). Over the past 240 years, legislatures have retrieved the right to make law, including property law, commercial law, divorce law and almost every other civil field. There is one vestige, however, where courts still make law — the law of torts.

Today, courts make full use of that power, as they did two centuries ago. While state legislatures occasionally have stepped in and enacted “tort reform,” setting forth limits or defining when a party might be held liable and the amount of damages that may be imposed for that liability, most tort law still springs from the fountainhead of judicial decisions.

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