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38 Ariz. L. Rev. 953 (1996)
Tort-Liability Insurance System and Federalism: Everything in Its Own Time, The

handle is hein.journals/arz38 and id is 973 raw text is: THE TORT-LIABILITY INSURANCE SYSTEM AND FEDERALISM: EVERYTHING IN ITS OWN TIME Roger C. Henderson* If for a moment we could wipe the slate clean with regard to the present system of state-based tort law and, at the same time, not worry about our current federal system of representative goverment, I would like to pose a question. The question is this: Is there anything inherent in tort law that would prevent, or even significantly work against, our having a national system of tort law in the United States? In trying to formulate an answer to this question, several things come to mind. The first thing that occurs to me is the origin of tort law in North America. We inherited lots of things, legal and otherwise, from England. Even though not all colonists were from England, as it turns out much of what endures in our legal system is traceable to that country-traceable either because our ancestors embraced the English legal system or rebelled against it. Probably our greatest legacy from the English system is the common law, a system that prevails in every jurisdiction of the United States, save Louisiana. And, of course, it was the common law process that gave birth to and brought to maturity the body of law that passes under the head of American tort law today. Yet, all one has to do is to think about the British Empire in the 18th and 19th centuries to realize that all of the Empire was pretty much subject to the same body of tort law with the London-based House of Lords and Privy Council as the ultimate arbiters. Whether the country was England, Ireland, Scotland, Canada, Australia, or whatever, there was in general one body of jurisprudence governing liability for personal injury and property damage- sort of a portmanteau of tort law-for all the subjects of the realm. In fact, it was not until relatively recently that countries such as Canada and Australia opted to end the right to petition the Privy Council to resolve tort and other issues. More importantly, for purposes of my point, one of the legacies of the British system is that today both Canada and Australia have federal systems of tort law, with their respective national courts of last resort, the Supreme Court of Canada and the High Court of Australia, possessing the final common law authority on the subject. Even though the American colonists revolted and threw off their English yoke and set themselves on a different governmental course, I would submit that there is nothing inherent in tort law or its common law source that would have prevented, or even seriously impeded, the development of a national body Professor of Law, University of Arizona, College of Law; B.B.A., University of Texas, 1960; LL.B., University of Texas, 1965; LL.M., Harvard, 1969.

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