Read 1325.pdf text version

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page i

A Revisionist History of Tort Law

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page ii

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page iii

A Revisionist History of Tort Law

From Holmesian Realism to Neoclassical Rationalism

Alan Calnan

Carolina Academic Press

Durham, North Carolina

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page iv

Copyright © 2005 Alan Calnan All Rights Reserved.

Library of Congress Cataloging-in-Publication Data Calnan, Alan, 1959A revisionist history of tort law / by Alan Calnan. p. cm. Includes bibliographical references. ISBN 0-89089-473-6 1. Torts--United States--History. I. Title. KF1251.C35 2003 346.7303'09--dc22 2003062560

Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 E-mail: [email protected] www.cap-press.com Printed in the United States of America.

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page v

In Memory of, Carol Ann Calnan, who passed too soon.

In Dedication to, Marcy Calnan, who could not have arrived soon enough.

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page vi

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page vii

Contents

Preface Introduction Contradictions and Commonalities The Influence of Oliver Wendell Holmes, Jr. Dualities and Inconsistencies in Holmes' Scholarship Holmes' Worldview Realist and Formalist Strains in Holmes' Jurisprudence Holmes' Theory of Torts Early Tort Scholarship "The Common Law" of Torts The Impact of Holmes' Tort Jurisprudence Holmes' Historiography The Evolutionary History of Tort Law Holmes' Confused Historical Legacy Mistaking Jurisprudence for History The Need for Revision Toward an Intellectual History of Tort Law Part I: Debunking the Conventional View Chapter 1: Holmes and History Holmes' View of History The Functions of History Practical Lessons: Problem-Solving and Pattern Identification Normative Lessons: Locating Cultural Identities and Categorical Imperatives Chapter 2: Historiography and Tort Law Imaginative Reconstruction Comprehensive Contextualism General Philosophical Context 37 37 40 41 44 49 49 52 52 xiii 3 3 4 6 6 8 12 12 15 22 23 25 28 30 31 32

vii

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page viii

viii

Contents

Jurisprudential Context Administrative Context Chapter 3: Flaws in Modern Tort Historiography The Conventional View and the Seeds of Revision Problems of Imaginative Reconstruction Looking Without Really Seeing Maintaining Modern Biases Problems of Comprehensive Contextualism Noses Stuck in Law Books Tunnel Vision Breaking the Grip of Conventionality Chapter 4: The Limited Relevance of Anglo-Saxon Sources Clans, Customs and Community Rule The Onset of the Common Law The Twelfth-Century Renaissance Reading Tea Leaves in the Dark Public Law, Not Private Torts The Morality of Anglo-Saxon Law Putting the Past in Perspective Chapter 5: The Indeterminacy of Late Medieval Sources The Building Blocks of the Conventional View Jurisdictional Purpose of Trespass The Classificatory Effect of Trespass The Meaning of Trespass Substance Concealed in Procedure Judgment Without Law Finding the Truth Behind the Cases Correcting the Past and Beginning the Future Part II: Identifying Tort Law's Philosophical Origins Chapter 6: The Twelfth-Century Renaissance Life Before the Twelfth Century The Education Revolution

54 57 63 63 67 67 70 73 73 76 80 81 83 86 88 90 92 94 97 99 99 101 102 104 107 109 111 115 119 120 120

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page ix

Contents

ix

The Integration of Greek Ethics, Roman Doctrine and Canon Jurisprudence Toward a Rights-Based Political Theory The Emergence of Individualism and Humanism Chapter 7: The Natural View of Law From Positivism to Naturalism Early Conceptions of Law The Classical View of Law Canonical and Contemporary Perspectives on Law From Divine Revelation to Natural Reason Early Conceptions of Legal Authority The Classical-Rational Basis of Law The Thomist Theory of Legal Authority The Thomist Legacy Chapter 8: The Liberal Basis of Duty Early Bases of Duty: Original Sin, Class Status and Communitarianism Anti-Individualism and Conformity From Determinism to Liberalism The Aristotelian Approach to Duty The Roman Concept of Duty Duty in the Renaissance Era Chapter 9: The Rational Approach to Judicial Lawmaking Modes of Practical Reasoning Perfecting the Law Prioritizing the Law Expanding and Relaxing the Law Equity in Classical and Canonical Jurisprudence Rigor Iuris and Equity Patterns in Medieval Jurisprudence Chapter 10: The Perfected Reason of the Common Law Custom: The Reason of Experience

123 125 126 129 130 130 131 132 135 135 137 139 140 143 143 146 147 147 149 151 153 153 154 155 158 158 160 161 163 163

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page x

x

Contents

Commentary and Caselaw: The Reason of Expertise Classical Commentaries and their Medieval Influence John of Salisbury, Glanville, Bracton and Fortescue The Collective Wisdom of Caselaw The Procedural Reason of the Scholastic Method Conscience and Equity in the Jury System Part III: Reimagining the Intellectual History of Tort Law Chapter 11: Consent, Rights and Wrongs The Fundamental Dichotomy: Rights and Wrongs Contracts and Classicism Volenti Non Fit Injuria Classical Roots of the Volenti Doctrine The Volenti Doctrine in Medieval Jurisprudence The Operation of Consent in Medieval Law The Public Policy Exception Consent: Liberal Symbol of a New Age Chapter 12: Trespass, the Natural Wrong The Classical Notions of Natural Justice and Wrongdoing The Medieval Reception of Natural Justice Bracton on Delicts Natural Justice in Novel Disseisin The Natural Justice of Trespass Instilling the Values of Neoclassicism Chapter 13: Case and Circumstantial Injustice The Expanding Reach of Trespass Special Trespass Writs From Trespass to Case The Natural Justice of Case Case's Concern: Special Relationships and Special Activities Completing the Neoclassical Infrastructure of Tort Law

165 165 167 171 172 174 181 181 183 184 185 186 187 189 190 191 191 193 193 195 197 199 201 201 203 204 205 206 208

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page xi

Contents

xi

Part IV: Tracing Tort Law's Moral Development Chapter 14: Reason's Reign The Reach of Reason The Functions of Reason The Authority of Reason Reason's Role in Tort Law Reason in Negligence and Strict Liability Reason's Reign: Absolute Yet Subtle Chapter 15: Stage One: Establishing Lawfulness Trespass and Lawfulness The Classical Origins of Lawfulness Lawfulness in Early Medieval Language and Jurisprudence The Morality and Politics of Lawfulness Chapter 16: Stage Two: Instituting Specific Responsibilities Reasonableness as Social Responsibility The Transactional Continuum of Responsibility Pretransactional Duties Transactional Duties Posttransactional Duties The Reasonableness of Transactional Responsibility Chapter 17: Stage Three: Synthesizing a General Standard of Fairness From Intentional to Inadvertent Wrongs Aristotle, Justice and Fairness The Origins of Fairness in Tort Law Fairness in Trespass Fairness in Case Fairness in "Strict Liability" Cattle Escapes Vicious Dog Attacks Fires 213 213 215 218 219 220 223 225 226 227 228 230 231 231 232 233 234 236 238 241 241 242 244 245 247 248 249 253 256

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page xii

xii

Contents

Master and Servant Toward a General Standard of Fairness Conclusion The Origins of Tort Law Macro-Patterns in Tort Law's Development: Evolution and Transmutation Micro-Patterns in Tort Law's Development Internal to External Objectivism General Principles to General Rules to a General Standard The Persistence of Strict Law and Equity Integrating Formalism and Pragmatism, Substance and Procedure The Foundations of Tort Law Naturalism, Liberalism and Rationalism Moral, Social and Political Influences Consent and Reasonableness Reasonableness as Fairness Contextualism Flexibility and Proportionality Morality and Fault Objectivity Problems and Prospects Select Bibliography Index

261 274 277 277 278 280 280 281 282 282 285 286 286 287 289 289 290 291 292 293 295 313

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page xiii

Preface

As a historian, I have always been impressed with John Godfrey Saxe's poetic fabl e , The Blind Men and the Elephant.1 In this fabl e , six learn ed bl i n d men examine an elephant to determine its essence. The first man touches the el ephant on its "broad and stu rdy side ." He con clu des that the el ephant is much like a wall. The second man strokes the elephant's tusk. He thinks the el ephant is like a spe a r. The third man feels the el eph a n t's tru n k . He compares the el ephant to a snake. The fo u rth man em braces the el eph a n t's knee . He see s the el ephant as a tree . The fifth man caresses the el eph a n t's ear. He analogizes the elephant to a fan. Finally, the sixth man grabs the elephant's tail. He relates the elephant to a rope. After all of the men have examined the elephant, t h ey ga t h er to compare opinions. E ach man vi goro u s ly defends his own op i ni on and attacks the op i n i ons of the others . None can see that each man is partly right, but all are essentially wrong. The fable teaches several valuable lessons of historiography. First, like the blind men , the historian usu a lly cannot see the thing or things he seeks to descri be . Thu s , he must be espec i a lly conscien tious in his inve s ti ga ti on of the facts. Second, the historian, like the blind men, cannot fully understand his su bj ect by stu dying on ly a few of its isolated parts. Ra t h er, he must take in the whole subject, examining its su b s t a n ce and stru ctu re and ob s erving its su rrounding environment. Finally, like the blind men, the historian cannot accurately perceive his su bj ect by relying exclu s ively on his own pers pectives and experiences. Instead, he must gather different sources of information, eliminate his preconceptions and activate his imagination. As a torts scholar, I have long been perp l exed by the law's many anomalies. Some tort s--like negl i gence and intenti onal tort s--are based on fault. However, other tort s--like stri ct liabi l i ty--requ i re no fault at all. Within the fault-based tort s , some doctrines--like res ipsa loquitur and negl i gence per se--requ i re vi rtually no proof of fault. Convers ely, within the realm of stri ct liabi l i ty some ac, ti on s--like those sounding in produ cts liability--requ i re ex ten s ive proof of fault-based concepts like defectiveness and foreseeability. Most disturbi n gly, some tort s--especially inten tional tort s--a re gro u n ded in mora l i ty. Yet other torts-- p a rticularly stri ct liability theori e s--are justified on public policy grounds alone.

1. John Godfrey Saxe, The Blind Men and the Elephant, http://www.wordfocus.com/word-act-blindmen.html (last visited on November 8, 2003).

xiii

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page xiv

xiv

Preface

A few years ago, I dec i ded to ex p l ore these anomalies furt h er. In s ti n ctively, I turned to history for guidance. I thought that, if I can locate the sources of these anom a l i e s , I can bet ter unders t a n d , explain, c ri ti que or defend them . Unfortunately, the more history I read, the more confused things became. I soon realized that the historiography of tort law was itself both confused and con f u s i n g. In deed , it rem i n ded me of Saxe's fabl e . Scores of historians had set out to examine the same subject--tort law. However, each historian focused s o l ely on some minute part of this vast field. A few looked at early An gloSaxon law. Ot h ers loo ked at the med i eval acti ons of trespass or trespass on the case. Sti ll others loo ked at the nineteen t h - cen tu ry theory of n egl i gen ce. Within this diverse gro u p, most historians loo ked on ly at the law 's fac ade--a n a ly zing old cases, codes and statutes--and negl ected its underlying va lues and intellectual traditions. No matter which approach they took, all of these historians were swayed by their own precon cepti on s . Because their pers pective s were so different, they could not reach consistent conclusions. Because their biases were so en tren ch ed, they could not see the real trut h : t h ey all were partially correct, yet they all were essentially wrong. Intrigued by these findings, I continued to press forward. What I discovered was even more remarkable. Despite their disagreements, almost all tort h i s torians shared a com m on point of inspirati on . All seem ed to rely -- in whole or in part, deliberately or not --on the historiography of Oliver Wendell Holmes, Jr. In the late nineteenth cen tu ry, Holmes devel oped his own brand of anti h i s to rical historicism. He viewed history not as a source of knowl ed ge or cultu re, but as a tool to prom o te his ju ri s pruden tial ideo l ogy. Because his jurisprudence changed over time, Holmes' historical conclusions w avered as well . In deed, by the time he joi n ed the Un i ted States Su preme Court, Holmes had presented so many inconsistent and contradictory historical opinions that he could be cited in su pport of just abo ut any theory of tort law's development. What I wanted , actually needed , to know was, h ow different would tort law's h i s tory look if we could free ours elves from Holmes' influen ce? In deed , what would happen if we heeded ra t h er than ign ored the lessons of Sa xe's fabl e ? Would a reimagi n ed history re a f firm the theories and doctrines of m odern tort law, or would it raise do u bts abo ut their de s i ra bi l i ty and legi ti m acy? This book was wri t ten in the hope of answering at least some of these qu e s ti on s . Of course, neither my answers, nor my passion for pursuing them , was sel f induced. I had a lot of help in both areas. Both my interest and my insights were tri ggered by past historians. In deed, I owe a great debt to many of the historians whose work I critique in this boo k . Without the provoc a tion of their ideas, I never would have taken up this extraordinary challenge. I also am in-

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page xv

Preface

xv

debted to some of my earl i er men tors -- parti c u l a rly Dr. Gera rd In n ocen ti and Dr. David Valuska. Their curiosity about, and zeal for investigating history continues to stoke my own fire for historical analysis. I received a lot of motivation and support on the home front as well. My p a ren t s , U.S. Navy Ca ptain Th omas J. Calnan Jr. and the late Ann Ca l n a n , both en couraged and sti mu l a tedmy interest in law and history, and gen t ly but wi s ely guided me down these paths. Th ey also taught me first-hand abo ut strict law and equity, topics which consume a good portion of this book. My wi fe, and my mu s e , Ma rcy Ca l n a n , h el ped me get all this down on paper. Besides conducting research, answering questions and reading drafts, she tolerated my atten ti on lapses and of fered me the freedom to pursue my dre a m s . Without her love, patience and unders t a n d i n g, this book tru ly would not have been possible. Many folks within my law sch ool com munity also were gen erous with thei r time and effort. Brian Bloom, Greg Givens, David Moncure and Eric Puritsky provided incredible research assistance, pouring through volumes of old case reports and traveling all over to track down obscure sources. Cathy Carpen ter re ad and of fered insightful comments on a rel a ted, earl i er arti cl e -- com m ents that hel ped convi n ce me to tu rn that piece into this boo k . An d David McFadden, the Senior Reference Librarian at Southwestern University S ch ool of Law, contri buted his experti s e -- not to men ti on many of his books --so that I might more swiftly and capably complete this project. F i n a lly, I would like to ack n owl ed ge the people at Carolina Academic Press, e s pec i a lly Bob Con row, Erin Ehman and Alexis Spero s . Th eir com m i tm ent to (if not necessari ly their en dors em ent of ) my ide a s , and their dedication to putting these ideas in print, makes me proud to be one of their authors.

Calnan 00 fmt cx 6 auto

1/19/05

10:16 AM

Page xvi

Information

16 pages

Report File (DMCA)

Our content is added by our users. We aim to remove reported files within 1 working day. Please use this link to notify us:

Report this file as copyright or inappropriate

259210


You might also be interested in

BETA