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Making Legal HistoryEssays in Honor of William E. Nelson$
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Daniel J. Hulsebosch and R. B. Bernstein

Print publication date: 2013

Print ISBN-13: 9780814725269

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814725269.001.0001

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PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 25 May 2020

The Political Economy of Pain

The Political Economy of Pain

(p.235) 9 The Political Economy of Pain
Making Legal History

John Fabian Witt

NYU Press

This chapter explores one of the great puzzles in twentieth-century tort law: How did pain and suffering damages move from the backwater of American law to become one of its main currents? It shows that plaintiff's lawyers used pain and suffering damages as a vehicle for staving off legislative revision of tort law, a defensive collective action that, ironically, helped produce even more of the common-law litigation that reformers had wished to prevent. In so doing, it reminds us that courts include more actors than judges and juries: Trial lawyers sometimes coordinate to act as independent agents and thereby make more than just litigation; they make law and change the course of legal history.

Keywords:   tort law, pain and suffering, damages, common law, litigation, courts, trial lawyers

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