- Paperback: 424 pages
- Publisher: Oxford University Press; Expanded edition (March 27, 2003)
- Language: English
- ISBN-10: 0195139658
- ISBN-13: 978-0195139655
- Product Dimensions: 8.2 x 1.3 x 5.4 inches
- Shipping Weight: 1.4 pounds (View shipping rates and policies)
- Average Customer Review: 3.7 out of 5 stars See all reviews (4 customer reviews)
- Amazon Best Sellers Rank: #1,426,136 in Books (See Top 100 in Books)
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Tort Law in America: An Intellectual History Expanded Edition
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"White has confirmed his reputation as one of the foremost figures in the field of American legal history."--Harvard Law Review
"[White] makes convincing sequence out of the muddy history of American tort law, tracing it from Victorian concepts of punishable wrongdoing through the dark thickets of negligence, contributory negligence and last clear chance, to the myriad modern conceptions of how the cost of accidents should be apportioned among the public....It is a brilliant and imaginative essay."--Louis Auchincloss
"An exciting chronicle of the development of an intriguing and currently important area of the law."--Marc A. Franklin, Stanford Law School
"White broadens our understanding of why we think of the law as we do and deepens our insight into its historical foundations."--Edward Purcell, author of The Crisis of Democratic Theory
--This text refers to an out of print or unavailable edition of this title.
About the Author
G. Edward White is Professor of Law at the University of Virginia Law School and author of The American Judicial Tradition.
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Top customer reviews
The book is useful on several levels. It gives a detailed chronology not only of the history of tort law but of the great legal intellectual movements of the last century. More important, White's work illuminates the often ignored role of legal academics in the development of legal doctrine. The public is generally aware that legislators and occasionally judges are called on "to make law." What the public does not realize and what White emphasizes is that when judges "make law," they are often repeating the latest law review article their favorite professor has written.
If there is a weakness in White's work, it is that he ignores what might be some of the more interesting philosophical questions his theories raise. For example, he makes strong and well-supported criticisms of the new wave of economic analyses of tort law without addressing what would seem to be a key question: If these theories lack such an intellectual foundation, why are they currently so popular? He also seems to argue obliquely that the rise of tort law is a unique occurrence in the history of legal theory, caused as much by the development of the modern law school as the industrial revolution. But he never discusses what role legal academics were meant to fulfill in relation to legal doctrines and how that role is changing. An analysis of that issue might tell us a great deal about the future direction of tort law.
White makes the cogent point early in the book that it was not industrialization, as such, that spawned the vast legal subjects of torts. It was the resulting transformation of this country into a society in which people were forced to interact with strangers much more frequently than in an agrarian society. The legal result was the imposition of universally imposed duties to strangers: What duties are owed by all to all? If this is true, then torts may be the legal system's convoluted effort to deal with man's alienation from others and even himself in a modern technological society. But such a theory is obviously beyond the scope of White's book. White has written a fine legal history and has raised broad questions. Now it is for others to try to provide some of the answers.
Law scholar G. Edward White begins with the rise of tort law as a separate discipline and traces its development through late nineteenth-century scientism; early twentieth-century legal realism; the contributions of Benjamin Cardozo, William Prosser, and Roger Traynor; and the "neoconceptualism" of the 1970s (the book was published in 1980). In this final chapter, he deals by turns with Richard Posner and Guido Calabresi on the law-and-economics side, and then with George Fletcher and Richard Epstein (the latter before he went over to the utilitarians).
White's basic take on this intellectual history is one that is bound to raise a few hackles. Basically, he thinks that tort law itself covers a rather motley assortment of wrongs and cannot be reduced to a few simple principles; most of the ideas that have influenced the history of the field have taken hold, not because they arise from the field itself or because they have so much intrinsic worth, but simply because the scholars at certain influential institutions made them intellectually fashionable. That tort law resists rationalization by simple principles White regards as a good thing, because it keeps legal scholars from becoming a sort of intellectual priesthood.
On a second reading, then, one can almost hear White chuckling as he describes Harvard Law School Dean Christopher Columbus Langdell's introduction of the "casebook" approach to legal education (yes, law students, this approach dates only from 1881): Langdell, it seems, thought that not only tort law but _all_ law could be summarized in a few simple principles that the student could extract in good empirical-scientific fashion from a few well-chosen cases. (Even Oliver Wendell Holmes, Jr., disagreed; the entire course of legal history since that time has confirmed that Langdell was wrong and White is right. Why the "casebook" approach is still the centerpiece of law education in the U.S. is therefore not altogether clear.)
White is a good writer and he paces all of this quite readably. He is also the author of a number of other books -- including a biography of Earl Warren (for whom White clerked) and a history of baseball -- but I believe this volume was one of his first.
Law students will probably find it at least indirectly helpful. We all meet both Cardozo and Prosser early in the first year, and Traynor appears when we get to products liability; I personally liked having White's book on hand in order to place this stuff in its historical context.
And it will be of general interest to anyone who doesn't want the law to be handed over to a scholarly class of priests.