Posted May 23, 2008Faculty Workshops: In their own words / Kenneth S. Abraham

The Influence of the Common Law Prohibition On Party Testimony on the Development of Tort Law, 1600-1850

The subject of this workshop is the common law rule that prohibited the parties to a civil suit (and others with an interest in its outcome) from testifying in the suit. Most modern scholars, and certainly most torts scholars, are completely unaware of this rule.

Yet the rule existed for at least the 250 years between about 1600 and the middle decades of the 19th century, in both Great Britain and the United States. To say the least, the influence of this absolute prohibition against testimony by the parties in a tort suit on the development of tort liability is worth considering, since the scope and import of tort liability, and the law governing the damages that were recoverable in tort during this same period, remain matters of debate to this day.

In the paper prepared for the workshop, I demonstrate the existence of the rule, chronicle its abolition in the second half of the 19th century, and identify several ways in which the prohibition on party testimony may have influence the development of tort liability: by limiting the number of suits that could be brought, and thereby limiting change in the law; by inhibiting the rise of liability for misfeasance; in the development of the objective standard of reasonableness; by constricting recoverable damages, especially general damages for pain and suffering; and by mitigating the amount of sympathy juries had for plaintiffs.

The workshop will be May 27 at noon in the Faculty Lounge.