Hackney on Judge Weinstein's Tort Law

James R. Hackney, Jr., Northeastern University School of Law, has posted Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, which appeared in the DePaul Law Review 64 (2014): 495-511.

This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge.

Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation.

The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants.6 Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality.

Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War.

The Law and Personal Image Into the Digital Age

By the 1970s, the basic doctrines of the tort "laws of image" had been established, as had American culture's "image-conscious sensibility." As I suggest in Laws of Image: Privacy and Publicity in America, the twentieth century witnessed the rise of a cultural outlook in which the self is conceptualized in terms of images. Influenced by a variety of forces, from the visual media to celebrity culture to the mobile and fluid conditions of urban life, Americans became aware of having public images, and being images: one's identity was embedded, at least in part, in the image or persona one strategically constructed and presented to others. In a world of crowds, surfaces, and distant and impersonal social relations, the ability to perfect and manage one's image came to be regarded as critical to social mobility, public recognition, and material success. In the individualistic culture of postwar America, it also became integral to ideals of personal liberation and psychological and emotional health. Individuals from a variety of backgrounds and circumstances asserted that they owned their images, that they had a right to control their images, and that this prerogative was critical to their ability to live and function as free and self-determining individuals. The law responded and contributed to this focus on images and the image-conscious self.

(credit)

The historical trends I write about in Laws of Image continue today. In our culture of instant celebrity, of blogs, smartphones, and webcams, we want to reveal ourselves, to create public images, to proclaim ourselves to the world, and we have the means to do it. But -- as ever -- we seem to want publicity on our own terms. 

Back in the early 2000s, a high school student wrote a critical poem about her hometown and posted it on her MySpace web page. Her school principal saw it and submitted it to the local newspaper, where it was published. The student sued the newspaper for invasion of privacy. She claimed that she intended the poem to be read only by her MySpace friends, and that even though she posted the poem online, publishing it in the newspaper invaded her privacy and caused her emotional distress. 

How is it that people can willingly post personal information online, then complain when someone else presents that same information in another, albeit displeasing context? This is the dynamic I describe in Laws of Image: people want to expose themselves to the public -- to create a public image, a visible public persona and presence -- yet at the same time to manage and control those images. And this is, in part, what "privacy" has come to mean in the online world: a right to control the contexts and circumstances of our self-publicity.

Thanks to the Legal History Blog! 

An Age of Images

The proliferation of the mass media, new communication technologies, and a cultural focus on personal images and "image management" led to the significant growth of "personal image law" in the post-World War II era.

Advertising surged in the 1950s. By the mid-50s, the U.S. was spending $9 billion to sell products -- and people. Politicians' increasing use of advertising techniques in their campaigns led the New York Times magazine to describe the 1960 election cycle as "The Year of the Image."

Other "image industries" flourished. Cosmetics were used widely, and beauty products began to be marketed towards teenage girls. Cosmetic surgery became popular, promising both men and women the possibility of perpetual youth. The objective was to perfect one's public image, to be envied, to be looked at.

1950s tv (credit)

Television, introduced in the late 1940s, reinforced the idea of pleasing public images as a source of success and approval. By the end of the 1950s, 88 percent of American households had a television set, and in the average home, the television was on for five hours a day.

Celebrity culture spread beyond the realm of entertainment to virtually every other area of endeavor, including politics. Celebrities continued to serve as role models of successful self-presentation, and there was great fascination with the ways that stars publicized themselves -- how they transformed, manipulated, and spun their images. The public was enthralled with backstages, with the activities of publicists and press agents, and the inner workings of Hollywood and other image-making "factories."

As historian Daniel Boorstin observed in his acclaimed 1961 book The Image: A Guide to Pseudo-Events in America, a significant part of the national economy -- the fashion, cosmetics, media, advertising, and public relations industries, among others -- was devoted to manipulating personal images for strategic advantage. It was becoming a matter of faith that the right image could "elect a President or sell an automobile," Boorstin wrote.

Privacy and Freedom of Speech

At the same time American courts were recognizing a right to one's image -- a "right to privacy" -- that made embarrassing or distressing media representations legally actionable, they were acknowledging another kind of image right: the right of publishers, writers, and filmmakers to depict people's likenesses and life stories, and the public's right to consume them -- rights of freedom of speech and press. As I describe in Chapter Seven of Laws of Image: Privacy and Publicity in America, the tension between the right to one's image and the freedom to make images of others came to a head in the important 1940 Second Circuit case Sidis v. FR Publishing.

William James Sidis (credit)

In the years before World War I, William James Sidis was a famous child prodigy. Sidis attended Harvard at eleven, spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was publicized around the world, renowned for his intellectual feats. Yet as an adult, Sidis's life took a different turn. He neglected his mathematical talents and retreated from public life. By the age of twenty, Sidis had become a recluse. At thirty-nine, he was an adding machine operator living alone in a shabby Boston rooming house. The New Yorker magazine tracked him down, interviewed him, and wrote up his story in 1937.

"William James Sidis lives today at the age of 39 in a hall bedroom of Boston's shabby South End." Sidis was a "large, heavy man, with a prominent jaw, thickish neck, and a reddish mustache. He seems to have difficulty in finding the right words to express himself, but when he does, he speaks rapidly, nodding his head jerkily to emphasize his points, gesturing with his left hand, uttering occasionally a curious, gasping laugh....His visitor found in him a certain childlike charm."

Humiliated, Sidis sued the New Yorker for invasion of privacy, for injuries to his feelings caused by the publication of the embarrassing article.

Libel law and "image consciousness"

In my book Laws of Image: Privacy and Publicity in America, and in my posts on the Legal History Blog this month, I've described how an emerging cultural sensibility in the first half of the 20th century -- an "image conscious sensibility," concern with one's public image and self-presentation in public -- was reflected in the creation and development of tort privacy law in the U.S. "Image consciousness" also shaped the modern law of libel.

Traditionally, the tort of libel protected reputation -- one's good name among one's peers. A defamatory or libelous statement was one that seriously lowered a person's esteem in his community: it exposed a person to "hatred" or "contempt," "injured him in his profession or trade, [and] caused him to be shunned or avoided by his neighbors."

By 1930, some courts were broadening the definition of a defamatory publication to include statements that didn't necessarily lower a person's reputation, but nonetheless caused distress and embarrassment. A publication could be defamatory if it tarnished a person's image in his own eyes, causing emotional distress.

Stanislaus Zbyszko (credit)

In Zbyszko v. New York American, from 1929, the newspaper published an article on the theory of evolution. In one part of the article, the text read: "The Gorilla is probably closer to man, both in body and in brain, than any other species of ape now alive. The general physique of the Gorilla is closely similar to an athletic man of today, and the mind of a young gorilla is much like the mind of a human baby." Near that text appeared a photograph of the well-known wrestler Stanislaus Zbyszko, in a wrestling pose, and under it a caption: "Stanislaus Zbyszko, Not Fundamentally Different from the Gorilla in Physique." He sued the New York American for libel. Though it was unlikely that anyone would think worse of the wrestler for the article, a jury sympathized with his sense of affront and awarded him $25,000.

Legal scholars observed an "increasing tendency" among courts in defamation cases to go "beyond the traditional reaches" of the protection of reputation to protect plaintiffs against "personal humiliation and degradation." A reflection of the image-conscious sensibility, courts were expanding libel's domain from external, interpersonal relations to include self-perception and one's feelings about one's public image.

Privacy and Public Image

By 1940, the tort action for invasion of privacy had been recognized in fifteen jurisdictions. The Restatement of Torts acknowledged it in 1939: "a person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other."

Most privacy lawsuits were brought against the media, and most did not involve publications that were especially "private." A number of privacy suits involved pictures of a person taken on the street and published without consent. In these cases, the law of privacy had little to do with "privacy." No exposure of private life had occurred. "Privacy" was about shielding people from publicity they found unfavorable, misrepresentative, or annoying -- that clashed with how they wanted to be known to others.

In Jones v. Herald Post (1929), Lillian Jones witnessed her husband assaulted and stabbed to death on the street, and she tried to fight back against the attackers. She sued for invasion of privacy when the Louisville Herald Post published her picture with a truthful account of her heroic efforts. She said that the publication was offensive to her.

The plaintiff in the 1931 case Blumenthal v. Picture Classics was an elderly woman, a street vendor, who sued over newsreel footage that depicted her on the streets of New York. The footage was candid and unaltered; she was in the film for six seconds. She complained that the portrayal was "foolish, unnatural, and undignified" and an invasion of privacy. In Sweenek v. Pathe, from 1936, a woman claimed that unauthorized newsreel footage taken of her in an exercise course for overweight women was an invasion of privacy because the footage was embarrassing.

As I argue in Laws of Image: Privacy and Publicity in America, it's only in a culture where people feel possessive and protective of their images that such representations, even if objectively benign, will be experienced as significant harms. Only in a culture that has invested great importance in images, that has freighted personal images with emotional and psychological weight, will the law recognize these kinds of harms and take them seriously. The law tracked American culture's focus on images; in recognizing these privacy claims as worthy of judicial attention, and monetary judgments in some cases, courts validated the "image-conscious sensibility" and the modern image-conscious self.

Image-consciousness and the Law

In my book Laws of Image: Privacy and Publicity in America, I chronicle the rise of what I describe as "laws of image" in the twentieth century, and the phenomenon of "personal image litigation." These legal developments tracked an image-consciousness in American culture -- our fascination with our looks, public personas, and the impressions that we make.

An especially intense brand of image-consciousness took root in the 1920s, an age when consumer culture and mass entertainment assumed a central position in American life, and when advertising, fashion, celebrity, and the media became important arbiters of values and conduct.

1925 beauty ad (credit) 

New visual media, such as photography, photojournalism, and motion pictures, accentuated the importance of appearances and created the sense of being subjected to the critical gaze of others. Images had become part of the public landscape, appearing on billboards, product packaging, and movie screens. Film stars, who exercised meticulous control of their images, became role models and icons, modal selves in a culture where the key to success was seen as the ability to create a pleasing image to amuse and impress others.

The emerging advertising industry, in conjunction with the new field of popular psychology, promised people that they could use conspicuous consumption to achieve a stunning image and distinguish themselves from the crowd. Advertisements played upon popular insecurities with identity and appearance, and they reinforced the perception that images were essential to social advancement. As an ad for Woodbury's Soap warned: "Strangers' eyes, keen and critical -- can you meet them proudly -- confidently -- without fear?" In the social world depicted in 1920s ads, the potential for humiliation, shame, and social failure lurked everywhere.

Barbas at BC Legal History Roundtable

[We have the following announcement from our friends at Boston College concerning our guest blogger, Samantha Barbas.]

We are delighted that on Thursday, October 15, 2015, Samantha Barbas will be joining us for the Boston College Law School Legal History Roundtable. Professor Barbas will be speaking about her new book: Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). A selection can be found on the Roundtable's webpage.

Samantha Barbas researches and teaches in the areas of legal history, First Amendment law and mass communications law. Her work focuses on the intersection of law, culture, media and technology in United States history. Her recent research has explored the history of the law of privacy and defamation. Barbas holds a Ph.D. in American history from the University of California, Berkeley, and a J.D. from Stanford Law School. She was previously an assistant professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University. She clerked for Judge Richard Clifton on the Ninth Circuit Court of Appeals in Honolulu, Hawaii. Barbas’ work has appeared in several law and history journals, including the Yale Journal of Law and the Humanities, the Rutgers Law Review, and the Columbia Journal of Law and the Arts.

Professor Barbas is working on another book, on the history of privacy and freedom of the press, Time v. Hill and America's Search for Privacy, under contract with Stanford University Press. She is also the author of Movie Crazy: Fans, Stars, and the Cult of Celebrity (Palgrave Macmillan, 2001) and The First Lady of Hollywood (University of California Press, 2005).

The event begins at 4:30PM in the rare book room of the BCLS law library.  Refreshments will be available starting at 4:15.  Parking is only allowed in white-lined spaces if you do not have a BC parking permit.  If you will be able to join us, please let Patrick Mahoney know in advance by emailing patrick.mahoney@bc.edu. 

As is our usual practice for the roundtable, Professor Barbas will start by speaking for 10-15 minutes about the book, e.g., what prompted her interest in the project, major points, difficult questions, etc.  Then we have a more general conversation with the group as a whole, present questions and comments, and so forth.

The Right to "Privacy"

Thanks again to the Legal History Blog for the opportunity to share ideas from my book Laws of Image: Privacy and Publicity in America.

We often think of the right to privacy as a "right to be let alone." In my book, I suggest that the right to privacy -- the tort of invasion of privacy -- has also been a right to one's image. The privacy tort, a creation of the late 19th century, was a response to an emerging "image-conscious sensibility" in the culture of the time.

In small towns and villages, a person's reputation was often a product of deep, ongoing contact with one's community. By contrast, in the expanding cities of the late 19th century, social identity was often a function of images -- what observers might infer about someone based on first impressions and chance encounters on the streets and other public venues. There emerged a new image-consciousness, and a preoccupation with mastering and perfecting one's social appearance. New technologies and media -- especially photography -- heightened the sense of being an image in the eyes of others. There was a potential reward for the scrupulous management of personal image -- respect, upward mobility and the possibility of social and material success.

It was in this social environment that the "right to privacy" was born. The 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis, "The Right to Privacy," decried information about personal affairs "spread broadcast in the columns of the daily papers."

Marion Manola (OSU)

The article accused the press of "invading privacy" when it revealed a person's emotions, activities, and idiosyncrasies before a public audience, even though such matters were not "private" in the sense of being secret or concealed. Newspapers could invade privacy when they published a person's photograph, even if it was taken in a public place. The article discussed the recent case of Manola v. Stevens, involving photographs of an actress taken without her permission as she appeared on the stage. Such publications were said to "invade privacy" because, in presenting the subject out of context and before an audience not of her own choosing, they impaired her ability to construct her public image as she wished.

Warren and Brandeis proposed a right to privacy that would allow people to recover damages for emotional distress when the press interfered with one's public image in an egregious, unwarranted manner. Privacy's domain, they wrote, was the lofty realm of dignity, the soul, and the "spirit." The right to privacy also had a more earthly, instrumental aspect. In an increasingly image-oriented culture, unfavorable, embarrassing depictions in the press were damaging in that they undermined a person's ability to cultivate one's image and maximize one's fortunes and social potential. The right to privacy was rooted in growing concerns with public image in American social life.

Laws of Image

I'm very happy to have the opportunity to share my work on the Legal History Blog this month. I was invited to blog because of the recent publication of my book, Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). The book offers a cultural and legal history of privacy and libel law in the U.S. from the late 19th century to the present, and it reframes those areas of law by linking them to what I describe as Americans' image consciousness: our concern with our looks, public personas, and the impressions that we make. In the book, I describe libel and privacy law as "laws of public image": laws that protect our ability to control and defend our public images, and to feel good about our images and public presentation of self. In my posts this month, I'll share some highlights from the book.

The book starts with these anecdotes:

In 2013, a woman found that her daughter's picture had been used in an ad for a local ice cream store, without the daughter's or the mother's consent. Her daughter had simply "liked" the ice cream store on Facebook. The woman was outraged and embarrassed.

In 1948, the Saturday Evening Post ran a critique of cabdrivers in Washington, D.C. that accused them of cheating their customers. A photograph appeared with the article that depicted a woman cabdriver, Muriel Peay, talking to the article's author on the street. The caption didn't name her, and the article didn't refer to her. Although the woman had consented to be photographed, she didn't know that the picture would be used in an article on cheating cabbies.

Angry and humiliated, these people could have done any number of things. One thing they did was to initiate lawsuits.

In the past hundred years, Americans have turned increasingly to the law to help them defend and control their public images. The twentieth century saw the creation of a "law of public image," and the phenomenon of "personal image litigation."

Under these laws of image, you can sue if you've been depicted in an embarrassing manner, even if no one thinks less of you for it. If a newspaper or website publishes your picture in a way you find offensive, you can, under circumstances, receive damages for your sense of affront -- for the outrage that someone has taken liberties with your image and interfered with the way you want to be known to the world.

Why does the law in the United States acknowledge rights to one's image? As I'll explain in forthcoming posts, the development of image law is part of a broader story of how Americans became fascinated, even obsessed with manipulating, perfecting, and reflecting on their own personal images.

Welcome, Samantha Barbas!

Samantha Barbas (credit)

We are delighted to have with us as a guest blogger this month Samantha Barbas, Associate Professor of Law at SUNY Buffalo Law School. Professor Barbas holds a Ph.D. in American history from the University of California, Berkeley, and a J.D. from Stanford Law School. She was previously an assistant professor of history at Chapman University, a visiting professor of history at U.C. Berkeley, and a lecturer at Arizona State University. She clerked for Judge Richard Clifton on the Ninth Circuit Court of Appeals in Honolulu, Hawaii.  She is the author of two previous books: Movie Crazy: Fans, Stars, and the Cult of Celebrity (2001) and The First Lady of Hollywood: A Biography of Louella Parsons (2005).

She is also the author of Laws of Image: Privacy and Publicity in America, which is just out from the Stanford University Press.

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights.

Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.

Endorsements from Lawrence Lessig, Hendrik Hartog, and Stuart Banner appear after the jump.  Welcome, Samantha!

A Museum of "the Weapon of the Weak"

The American Museum of Tort Law opens tomorrow in Winstead, CT, Ralph Nader's home town, the New York Times reports.  A ceremony to dedicate the museum takes place today.  Speakers include Ramsey Clark, Eric Foner (who coined the phrase in our title), and Patty Smith, whose "father, a factory worker, had worshiped Mr. Nader."

Stern on the Origins of the "Reasonable Person"

Simon Stern, University of Toronto Faculty of Law, has posted R. v. Jones (1703): The Origins of the "Reasonable Person," which is to appear in Landmark Cases in Criminal Law, ed. Ian Williams, Phil Handler, and Henry Mares (Oxford: Hart, 2016):

Although the origins of the “reasonable person” standard are usually traced to the 1837 tort case of Vaughan v. Menlove, eighteenth-century jurisprudence offers various examples of a personified, objective standard. This paper focuses on an early version of this standard, in a 1703 fraud case, R. v. Jones, which uses the “person of an ordinary capacity” to draw the line between civil and criminal liability. The discussion examines how this standard was transformed in the course of the eighteenth century; considers the blend of normative and descriptive features that were already driving the standard at this time; and seeks to explain what is significant about the personified form of the standard, such that it fits some areas of criminal law, such as duress and provocation, better than others, such as fraud. Although fraud would ultimately prove to be an inhospitable area for the use of this standard, R. v. Jones provided a vehicle for its circulation, so that it might eventually take root elsewhere. In the course of the discussion, I show how William Hawkins’s treatise on criminal law reformulated the standard in terms that are far more familiar to modern eyes (“a man of common prudence and caution”), and I discuss some of the early nineteenth-century American jurisprudence, which would have made the application of the standard a question for the jury.

West on Gatsby and Tort

My Georgetown Law colleague Robin L. West has posted Gatsby and Tort:

A Scene from the Great Gatsby Festival (C. Highsmith)

The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of this piece discusses tort law during Gatsby’s decade -- the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs -- and only partly and fitfully replaced by compensation schemes.

Sir Geoffrey Palmer on NZ's ACC

Perhaps because one of my first sights upon disembarking in Auckland was someone in a Georgetown tee shirt, I was not immediately struck by the differences between New Zealand and the United States when I arrived in Aotearoa for a Fulbright in 1996.  But my education in comparative legal history certainly began when my family checked into our first motel, and I spotted a trampoline, more or less like the one pictured here, standing nonchalantly out back.  As my mind reeled from the tort liability, I suddenly knew that I was not in Kansas anymore.

Now comes an SSRN posting by Sir Geoffrey Palmer QC, Victoria University of Wellington Faculty of Law, of Big Change, Exciting Adventures: Accident Compensation, a chapter from his Reform: A Memoir (Wellington: Victoria University Press, 2013), 198-226:

It concerns New Zealand’s novel accident compensation scheme that replaces tort law as a means of compensating the victims of accidents. It reviews the author’s involvement with the reform from its earliest days up until the present. It traces the difficulties with enacting the scheme, its administration and its financing. It also reviews efforts to take the reform to Australia where it was not enacted. It reflects upon the difficulties of securing general deterrence through the allocation of accident costs.

Harlow on the Impostor De Arnaud

James Harlow, US Department of Justice, has posted An Impostor If There Ever Was One": The Trials of Charles De Arnaud, which appears in Prologue: Quarterly of the National Archives and Records Administration 47 (2015): 6-14:

Charles De Arnaud was the most infamous government claimant of the Gilded Age. He was “known by almost every public man in the country.”  To some, he was a gentleman-soldier, who had served the United States at great personal cost during the Civil War and never received his full due. To others, he was an irrepressible fraudster, who shamelessly pursued undeserved money and honors for decades.

De Arnaud also was the most prolific government claimant of the time. From 1885 until his death in late 1905, among other requests, he sought a gold medal, a medal of honor, a veteran’s pension, and a $50,000 payment from the United States. De Arnaud haunted the hallways of Congress and bedeviled federal bureaucrats. The courts too, including the United States Supreme Court, were not spared his pleas; albeit others as often hailed him into court as he commenced the suit. 

The saga of Charles De Arnaud reveals the law and politics surrounding the Civil War veterans’ pension scheme. Interlaid with this backdrop is a story of an indomitable fraudster’s quest for fame and fortune. As an epilogue, newly unearthed evidence provides the basis for an ultimate judgment on the worthiness of De Arnaud’s cause.

American Museum of Tort Law Announces Executive Director

And, while we're on the topic of bar-initiated historical activities, we should note the report in the Connecticut Legal Times that a well-known Connecticut trial lawyer Richard Newman has been named executive director of the American Museum of Tort Law, which consumer advocate Ralph Nader announced he would open in his hometown of Winsted, Connecticut, back in 2013.

"A tort museum, I like that," Katherine A. Hermes, a legal historian who chairs the history department at Central Connecticut State University (and who long ago hosted me in New Zealand), says in the CLT story.  "I'm very intrigued by the idea and think this will be a very popular attraction for legal scholars."

White on the Emergence and Development of Amreican Tort Law

G. Edward White, University of Virginia School of Law, has posted The Emergence and Development of a Law of Torts, which is to appear in the University of St. Thomas Law Journal 11 (2015):    

This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.

New Release: Siegel's "Forensic Media"

Greg Siegel, an Associate Professor of Film and Media Studies at the University of California, Santa Barbara, has published Forensic Media: Reconstructing Accidents in Accelerated Modernity with Duke University Press:

In Forensic Media, Greg Siegel considers how photographic, electronic, and digital media have been used to record and reconstruct accidents, particularly high-speed crashes and catastrophes. Focusing in turn on the birth of the field of forensic engineering, Charles Babbage's invention of a "self-registering apparatus" for railroad trains, flight-data and cockpit voice recorders ("black boxes"), the science of automobile crash-testing, and various accident-reconstruction techniques and technologies, Siegel shows how "forensic media" work to transmute disruptive chance occurrences into reassuring narratives of causal succession. Through historical and philosophical analyses, he demonstrates that forensic media are as much technologies of cultural imagination as they are instruments of scientific inscription, as imbued with ideological fantasies as they are compelled by institutional rationales. By rethinking the historical links and cultural relays between accidents and forensics, Siegel sheds new light on the corresponding connections between media, technology, and modernity.

Professor Siegel's appearance on New Books in History is here.

Katz on Judicial Patriarchy, Domestic Violence, and the Family Privacy Narrative

Elizabeth Katz, a doctoral candidate in History at Harvard University, with an JD and MA in history from the University of Virginia, has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative, which is forthcoming in the William and Mary Journal of Women and the Law 21 (Winter 2015): 379-471.  Ms. Katz received the Kathryn T. Preyer Award of the American Society for Legal History for an earlier version of this article.

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.