The Modern Transformation of Civil Law

Abstract

This Essay addresses the transformation of civil law that began in this country, roughly around the mid-1960s, from a legal system that intervened in the lives of citizens only on occasions of serious moral dereliction, to the most extensive and powerful regulatory mechanism of modern society. Prior to the 1960s, civil law served a modest role in U.S. affairs. It enforced property rights and policed boundary disputes through property law, enforced promises as well as disclaimers of liability through contract law, and provided damages for personal injury through negligence law (tort law) when an individual was injured by an egregious breach of standards of normal behavior. Though the negligence standard proved loose enough to allow substantial subsequent expansion, courts prior to the 1960s employed this standard only where a party showed clear moral culpability that was substantially antagonistic to social norms. Standards determined by private contract were far more significant to the determination of the obligations of citizens. Since the 1960s, however, our civil law has changed dramatically. Contract law, property law, and especially personal injury law have transformed both in function and effect. The transformation occurred through neither a sudden change in legal doctrine, nor legislative statute or popular referendum. Instead, the transformation occurred through the triumph of a set of ideas: the acceptance by the judiciary of the proposition that civil damages judgments can serve as the most effective public policy instrument for regulating the level of harm suffered by citizens in the society.