(and also one of the best articles I've seen in a long time) is Jed Shugerman's article in the most recent issue of the Journal of Tort Law: "A Watershed Moment: Reversals of Tort Theory in the Nineteenth Century." It's about tort doctrine related to floods--hence the watershed moment. Ha, ha.
I really enjoyed the article, which identifies the role of moral philosophy in post-Civil War jurisprudence. This is different from some of the received wisdom--would be pretty interesting to line up Posner's "A Theory of Negligence," which looked to a similar railroad tort cases in the same period.
Here is Jed's abstract:
This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.
An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to subsidize industry, while others claim that its basis was in the moral condemnation of wrongdoing as a principle of corrective justice. Courts supposedly did not embrace strict liability until the mid-twentieth century, driven by efficiency arguments. This article challenges the established view by setting forth three periods.
In the first period from 1810 to 1860, instrumental and moral arguments were rare or non-existent, and instead, courts relied on simple assertions or minimalist citations to precedent in establishing a general negligence rule. In the second period (the 1870s and 1880s), American courts defended the general negligence rule with economic arguments not as a primary justification, but as a defense against the English challenge in Rylands. In the third period around the turn of the century, state judges, partly reacting in horror to the disastrous Johnstown Flood of 1889 and other unnatural modern threats, turned to strict liability with moralistic corrective justice arguments, not instrumental arguments. The cases from this last period illustrate a number of moral arguments in favor of strict liability: choice and duties; fairness (those who profit from an activity should pay those they hurt); a social contract argument of reciprocity; and a rights argument in favor of the natural user over the unnatural innovator. Instead of enterprise liability emerging from post-Great Depression/New Deal politics, from twentieth-century academics, or from engineers overlooking the factory floor, it gained significant ground in the late nineteenth century from the murky depths of a flooded Pennsylvania valley. This historical study of the dramatic twists and turns on Rylands suggests that tort doctrine and tort theory are contingent upon events and context.
This is a very important article, which fits with some other scholarship on nineteenth century law of late. It turns to judges' statement about moral philosophy (and in particular concern over the morality of the builders of the damn that broke and caused the Johnstown Flood of 1889) to explain the development of negligence. The common explanation has been the judges turned to a balancing of cost and benefit to determine negligence. As usual, Shugerman has looked deeply and perceptively at this problem.
I wrote a little about some other recent scholarship on antebellum moral philosophy, around Susana Blumenthal's article in Law and History Review last spring over at legal history blog. At the time I suggested that there were several traditions of moral philosophy. I wonder if what Shugerman has identified are several traditions of tort thinking--the economic analysis, which makes duties turn on expected profits from an enterprise, as well as the moral analysis that stems from the use of property in a way that interferes with neighbors (particularly poor neighbors). This is a mighty important piece of the history of tort law.
Alfred Brophy
Comments