Saturday, March 13, 2010

A Student's View of Prosser's Torts, 1938-39

[I'm moving up this post, which originally appeared in January 2009, because an updated version of Professor Robinette's article, forthcoming in the University of Illinois Law Review, is now available, here. And, while I’m at it, I’ll note that Neil M. Richards, Washington University School of Law in St. Louis and Daniel J. Solove, George Washington University Law School have just posted Prosser's Privacy Law: A Mixed Legacy, forthcoming in California Law Review, Vol. 98, 2010 ]

As a sometime user of student notebooks--it happens that I'm about to add a citation to Carl McFarland's notes on Felix Frankfurter's administrative law seminar in the 1931-32 academic year to a paper of mine--I was intrigued with the post on the SSRN paper by Christopher J. Robinette, Widener University School of Law, The Prosser Notebook: Classroom as Biography and Intellectual History, which I first saw on Legal Theory Blog. (Professor Solum also noted that Robinette blogs on the notebook here.)

I know that some law libraries actively collect student notes on the classes the more illustrious and departed members of their faculties. See Karen S. Beck's "One Step at a Time: The Research Value of Law Student Notebooks,” Law Library Journal 91 (Winter 1999): 29-138. I’d be pleased if readers would add their favorite examples in the comments. How many readers have an ancestor's notebooks on legal classes moldering in an attic? (For the record, I have my paternal grandfather's for the University of Iowa in the 1920s and my father's for the University of Michigan in the 1950s.)

Here's the abstract for Professor Robinette's paper:
When a former student offered to let me see his grandfather's Torts notebook, I was intrigued. The 70-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938-39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.

Because Prosser's papers likely have been destroyed, Merrifield's notebook offers a unique "behind the scenes" look at Prosser during a very significant period in his professional development. During 1938-39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser's article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser's place in the intellectual history of twentieth century legal theory. Prosser's 1938-39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser's realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law's most influential thinkers.

This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser's seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.