Tort Law in America: An Intellectual History

Abstract

legal rules to a rubble of disconnected particulars, set in motion a yearning for intellectual equilibrium and repose.This mood persisted through the 1940's and 195o's and was very creative in a practical way, producing out of its confidence in "objectivity and rationality" (p.189) Prosser on Torts, 3 Judge Traynor's opinions on strict products liability, 4 and the second Restatement. 5 This "Consensus Thought," however, had never really responded to the threat of Realism by formulating a new structure for tort law; it had only stopped talking about Realism.Consequently, that threat persisted into the late I96o's and 1970's, when a diverse band of tort theorists (Posner, Epstein, Fletcher, Calabresi) responded by setting out to restore to the field some general unifying conceptions.Now, the rival theories of these Neoconceptualists struggle to dominate the analysis of tort liability. I.If the story thus outlined sounds rather familiar, it's because it is: for law teachers at least, the experience of reading this book will be like taking a bus tour through the city in which they have lived their adult lives: "Now on your right is the Palsgraf case, 6 a case you would hardly believe really happened....And if you look closely, you can see where products liability began to emerge in Escola."' 7 The tourist may wonder why the bus (the trip is billed as a tour of intellectual landmarks) skips some of the most famous attractions, since it stops at length by Holmes, Bohlen, Leon Green, Cardozo, Prosser, and Traynor but misses or slights Jeremiah Smith, Pound, Wigmore, Seavey, Harper and James, Hart, and Honor6, and even (most surprisingly) Learned Hand, whose negligence "formula" 8 is indispensible to every torts student.Where he does stop, White as tour guide provides concise and useful accounts of the major changes in thought summarized above; these are sometimes pedestrian but some-3 W.