Shugerman on 19th-Century Tort Theory

Jed Handelsman Shugerman, Harvard Law School, has published A Watershed Moment: Reversals of Tort Theory in the Nineteenth Century in the on-line Journal of Tort Law. Here is the 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 [imagined, in all its horror, at right] 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.

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