Interspousal tort immunity remains an untidy corner of the law. That rule prohibits husbands and wives from successfully pursuing a civil cause of action against each other for personal injuries.
First recognized in the United States during the 1860s, immunity has a rich and instructive history. It was abolished by seven jurisdictions between 1914 and 1920, eroded gradually in the ensuing fifty years, and has been transformed dramatically from a majority to a minority rule since 1970.
Despite increasing judicial willingness to abrogate immunity, few courts have analyzed carefully why it should be abolished, and a number of jurisdictions retain the doctrine in whole or in part. Most tort law commentators have denounced the rule since its initial abrogation but have failed to assess incisively either the history of immunity or the reasons for its elimination. Thus, a standard historical treatment developed and a stock litany of arguments favoring abolition has come to be recited. Moreover, the doctrine has not evoked recent scholarly interest; no comprehensive, critical evaluation of immunity has been undertaken in the last quarter century. Nonetheless, there has been burgeoning research, in fields such as women's legal history and feminist jurisprudence, that has important implications for tort immunity. It is appropriate, therefore, to apply this new work to the longstanding doctrine, while exploring the rule's history, reexamining the rationales that underlie the doctrine's continued application and abrogation, analyzing whether immunity should be eliminated fully, and considering the consequences of total abolition.
The first Part of this Article is a review of the origins and development of interspousal tort immunity. It initially examines the legal status accorded women in the United States before 1840 and passage of the Married Women's Property Acts, while discussing the consequences of both for immunity. The century and a quarter of case law then is analyzed by emphasizing evolving currents in judicial decisionmaking, developments in tort jurisprudence and societal views of women, wedlock, wives, and the family, as well as their interrelationships.
Although the question of whether interspousal tort immunity should be abrogated or retained has become today a debate over the public policy reasons for the respective positions, those rationales have their origins in earlier developments. Because the policy concepts now are so significant, but have been accorded inadequate evaluation by judges and writers, Part II of the Article provides an assessment at once more systematic and rigorous. This examination yields the conclusions that, although the arguments favoring abolition are only somewhat more persuasive than those against it, the continued application of immunity serves little useful purpose. Accordingly, complete abrogation appears advisable and probable by the year 2000.
The final Part of the Article explores important implications of totally eliminating the rule. This analysis indicates that abolition would vindicate numerous purposes of tort jurisprudence, benefit wives in specific situations, and afford females certain advantages. The evaluation also demonstrates, however, that abrogation may have some adverse impact on the tort law system and is unlikely to increase women's power, improve significantly the conditions of wives, or enhance substantially male-female relations.
Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359 (1989)