Lake on Men's Suits for Sexual Misconduct Defamation

Jessica Lake, Melbourne Law School, has published Professional authority and institutional integrity: men's suits for sexual misconduct defamation in nineteenth-century America, open access, in the American Journal of Legal History:

Since the #MeToo movement, prominent men accused of sexual misconduct have frequently brought defamation claims against their accusers and media companies that have published the allegations. This trend has generated a wealth of debate and scholarship, but little research has placed such cases within a historical context. This article seeks to fill this gap in legal history by examining men’s sexual misconduct defamation claims in the nineteenth-century United States. By analysing numerous court records and connecting them with shifts in work patterns and models of masculinity, it argues that men’s claims for sexual misconduct defamation were increasingly connected to the rise of the professions during the nineteenth century. Whereas ideas of ‘male fortitude’ in the face of sexual accusations were central to judicial adjudication of rural men’s claims—particularly farmers—courts took the vindication of the sexual reputations of urban, professional men more seriously. Such scandals had the capacity not just to insult or wound individual feelings or threaten bonds of community or kin, but they could imperil respect for the emerging professions and undermine the authority of social institutions. Scandals involving professors could erode the repute of universities, reports about doctors could undermine respect for medicine, rumours about lawyers could breed distrust of the courts, and news articles about teachers could threaten the education system. Defamation cases show that men’s sexual transgressions mattered most when they questioned the authority of professional expertise and republican projects of other men.

--Dan Ernst

Schorr on Anglicization and Reform in Mandate Palestine Tort Law

David B. Schorr has published Against "Anglicization": Class, Codification, and the Common Law in Palestine's Civil Wrongs Ordinance in Law and History Review:

This article explores the enactment of the Civil Wrongs Ordinance in Mandate Palestine in order to question the utility of “Anglicization” as a historical lens, and to suggest that it tends to crowd out more helpful framings, in particular those involving distributive or class motivations and effects. The Ordinance has been portrayed primarily as an instance of the codification of the common law of torts and its import to Palestine. Without denying the Englishness of the Ordinance, this article demonstrates that it did not codify the common law of tort but went considerably beyond it in reforming Palestine’s liability regime. It further argues that the “Anglicization” framing obscures more than it illuminates, missing the massive redistribution of risk, costs, liability, and welfare that resulted from the change in Palestine’s tort law. The study also complicates the commonly accepted chronology of the development of compensation for injuries in the common law world. In Palestine, English-style tort law was the product of progressive reform, designed to overcome the shortcomings of the preceding regime of workers’ compensation schemes. The significance of Anglicized tort law in this jurisdiction was thus very different, in some ways the polar opposite, of that in other, better-known contexts.

--Dan Ernst

Weekend Roundup

• A one-day, virtual workshop on Historical Evidence for Policy Reform in Marital Breakdown, Domestic Abuse, and Child Welfare sponsored by Northumbria University on January 20, 2026.   

• Catherine Ceniza Choy, Cybelle Fox, Leti Volpp, and Hidetaka Hirota "discuss how the 1875 Page Act laid the foundation for the Chinese Exclusion Act and later immigration laws in the United States" (Berkeley Talks).

• "Remembering Mitsuye Endo and the Supreme Court Case That Helped End Incarceration" (Densho).

• 
  Applications for the Baldy Center Post-Doctoral, Mid-Career, and Senior Fellowships in Legal Studies 2026-27 at the University at Buffalo School of Law are now open!   

• Adam Feldman on the death of the norm of consensus on the U.S Supreme Court--and after (SCOTUSblog).

• The Brennan Center for Justice's "Playbook for Countering Originalism in Court."

• "Inside the Supreme Court of Canada: The Road to the Charter" (CPAC).  

•  Christopher Bryant, University of Cincinnati College of Law, on the temporary insanity defense of the bootlegger George Remis (UC Law). 

• ICYMI: A train wreck and Grand Central station (Smithsonian).  The History of the Kings County Supreme Court Library (NYLJ).  Rhinelander v. Rhinelander (NYT Magazine). The 1884 Cannibalism-at-Sea Case That Still Has Harvard Talking (Harvard Magazine).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Cai on Tort Law in Early Imperial China

Liang Cai has published open access in Law and History Review Absence of Talion and Tort Law in Early Imperial China (221BCE-9 CE): How Body Politic Cancelled Corrective Justice:

From a comparative perspective, this paper argues that early Chinese empires lacked the concept of talion or tort law when malicious violence or intent became factors. Instead, wrongdoers were required to pay fines to the government or received punishment as hard labor for the state. Victims not only could not receive compensation but were sometimes punished along with the offender if their loss was perceived as a loss to the empire. I argue that the absence of corrective justice in criminal cases can be traced back to the philosophical underpinnings of the body politic, a prominent discourse in early China that viewed the emperor and the people as a single, organic entity. When people were conceived of as constituting a unified, singular entity, criminal actions against an individual were interpreted as damage to the empire. Therefore, punishments for offenders were designed to compensate the empire, not the individual. Furthermore, in the context of the body politic, the suffering of both victims and offenders was regarded as metaphysically equal, which justified frequently pardoning culprits on a large scale to secure harmony within the empire. Originally, the body politic was employed to admonish and criticize the throne, urging the emperor to align his interests with the well-being of his people, but in practice, it compromised the practice of justice.

--Dan Ernst

Uncertainty in Comparative Law and Legal History

Published last month: Uncertainty in Comparative Law and Legal History: Known Unknowns, edited by Andrew J. Bell and Joanna McCunn (Routledge, 2025):

Laws are imposed on facts. But what is the law to do when its rules for establishing facts do not—because they cannot—produce a satisfactory answer? Scenarios that raise this intractable uncertainty problem have been treated as isolated concerns, but are in fact endemic across legal systems. They can cross jurisdictional and doctrinal boundaries, have recurred throughout history, and demand creative thinking from those faced with them. This book explores the law’s understandings of and responses to such situations from a comparative historical perspective. It investigates how the law has framed these most difficult problems of uncertainty; dealt with uncertainty’s often unclear boundaries; and developed a broad range of different responses to solve or avoid it, across doctrine, time, and jurisdiction. The work examines a selection of key uncertainty problems across private law as elements of a singular uncertainty issue endemic in legal systems. This analysis will be of interest to historians and comparatists, but also to doctrinal, theoretical, and other scholars and practitioners. The analysis leaves us better informed and better equipped for dealing with future scenarios where uncertainty arises, including insights beyond national and doctrinal confines.

A book launch will take place on Thursday, February 13, 2025, 17:00-19:00 GMT in the Lady Hale Moot Court Room at the University of Bristol Law School and online.  Gwen Seabourne and Catharine Macmillan will participate.

–Dan Ernst.  TOC after the jump.

Zoom Symposium: British Crosswalks and American Airlines

[We have the following announcement.  DRE]

Law, Culture, and the Humanities is sponsoring a symposium via Zoom, Wheels and Wings: Law, Regulation, and Mass Mobility in the 20th Century, on November 20 @ 12:00 pm – 1:30 pm.  Eva Vaillancourt (History, UC Berkeley) and Joanna Grisinger (Law, Northwestern University) bring their recent research projects into conversation.  Register here.

Eva Vaillancourt, Dept. of History, UC Berkeley.  "The Birth of the British Crosswalk: Mystical Lines, Mechanical Obedience, and the Puzzle of Law-as-Infrastructure”

When the first pedestrian crosswalks appeared in Britain in 1934, most people found them baffling, if not a little absurd: how do painted lines on the pavement protect you from oncoming cars? They don’t, one comedian remarked: “But if a car kills you while you are standing in it, the police won’t blame you.” This paper follows the crosswalk’s early career in British tort law, where the meaning of this new technology was hashed out over a series of cases in the late 1930s and 40s. Debate turned on questions of the body in time and space (e.g. How close to the crosswalk does a car have to be before the pedestrian’s decision to assert her right-of-way becomes “unreasonable?”), but also on wider questions about law itself. Is following the state’s rules enough to satisfy your duty of care to your fellow man? Can state regulation replace moral and situational judgment, effectively “automating” the unstable human relationships on which social reproduction depends? Finally, can we rely on legal rules to deliver a person safely from one side of the street to the other, in the same way we’d trust a bridge to deliver us safely across a river? In short, are legal rules a form of infrastructure?  

Joanna Grisinger, Center for Legal Studies, Northwestern University.  “The Highs and Lows of Airline Travel: Consumer Rights, Airlines, and the Civil Aeronautics Board”

In the 1960s and 1970s, as soon as Americans began traveling by air in record numbers, they began complaining about it. Passengers took offense at race discrimination, sex discrimination, discrimination against physically disabled passengers, discrimination against non-VIPs, delayed and cancelled flights, lost luggage, the lack of seatbelts in airplane bathrooms, and the absence of hot dogs from airline menus. Aggrieved passengers turned to the federal Civil Aeronautics Board, demanding that the federal government put passengers at the center of its regulatory efforts. This clash between competing definitions of the public interest forced the board to reorient its traditional reactive approach to enforcing the law, and to adopt more proactive measures that established rules for passengers and airlines alike.

Friedman on Work Accidents

Lawrence M. Friedman, Stanford Law School, has published Work Accidents: A Drama in Three Acts in the Hofstra Labor and Employment Law Journal.  The acts are Farwell, workers compensation statutes, and their administration.  An admirably compact essay, by the master.  And, while we're on the subject, we recently viewed this, which was part of the exhibit, American Art: The Stories We Carry, at the Seattle Art Museum.

--Dan Ernst

White on New York Times v. Sullivan

G. Edward White, University of Virginia School of Law, has posted Reconsidering the Legacy of New York Times v. Sullivan:

This Article argues that the “actual malice” standard for recovery in defamation cases should be abandoned outside cases in which the plaintiff is a “public official,” currently defined as an employee of the government whose office invites public scrutiny and comment. The actual malice standard prevents many categories of plaintiffs from recovering substantial amounts of damages without showing, by clear and convincing evidence, that a defendant either intentionally made a false and damaging statement about the plaintiff or made it with reckless disregard as to whether the statement was true or false. The Article identifies four features affecting defamation cases not involving public officials that point in the direction of reconsidering the actual malice standard in those cases. Two are doctrinal: the Court’s failure, in New York Times v. Sullivan, to clearly articulate the source of the actual malice standard because of its concern about southern states’ use of defamation law to deter criticism of their resistance to racial integration; and its subsequent misguided application of the actual malice standard to defamation cases that did not raise the constitutional issues it identified in New York Times. Two are cultural. The first of those is changes in the landscape of media communications in the sixty years since the Times decision, notably the more ideological character of mainstream media and an increased frequency of communications on the internet by anonymous persons. The second is the advent of media insurance, which makes it possible even for defendants who have violated the actual malice standard to secure themselves immunity from defamation judgments. The combination of those features has made it very difficult for persons injured by false and damaging statements about them to sue successfully in defamation. Meanwhile the Court’s departure in post-New York Times cases from the principal First Amendment concerns in defamation actions, a “chilling effect” on speech that invites media self-censorship unless a “breathing space” for some false and damaging communications is afforded, has served to obscure the central meaning of New York Times. The Article proposes a framework for defamation cases that deconstitutionalizes actions in which the plaintiffs are not public officials, restoring much of defamation law to its common law roots. That alteration would not necessarily result in more successful defamation actions, as the common law of defamation contains its own privileges and available defamation defendants will continue to be difficult to identify in today’s media landscape. The Article invites litigators to consider bringing cases to the current Court in which it has an opportunity to revisit its decisions in Curtis Publishing Co. v. Butts, Associated Press v. Walker, and Gertz v. Robert Welch.

--Dan Ernst

Russell on Models of Dispute Resolution and Street Railway Claims

Thomas D. Russell, University of Denver, Sturm College of Law, as posted Claims on the Tracks:

A Trip Down Market Street, 2016 (Upchurch)

Using original empirical evidence, this Article challenges the prevailing conception of a “dispute pyramid”—a smooth process of attrition from personal injury through claiming to litigation. Instead, I argue for the metaphor of a “salmon run,” with huge drop-offs from the levels of injuries to claims and, especially, to litigation.

As support for the proposed model, the Article analyzes the claims department records of Alameda County’s principal street railway company during the early twentieth century. Using data drawn from archival records of the street railway company’s attorney, Harmon Bell, the Article examines the operation of the street railway’s claims department in detail. This never-before-assembled data reveals the hidden operation of the systems of claims compensation within an industry that injured approximately one in 331 urban Americans in 1907. For a sense of the street scene, see this video of San Francisco in April 1906.

The assembled data include all the personal injury suits filed in Alameda County’s Superior Court, all appellate cases involving the street railway company, and other sources concerning the street railway industry. In particular, the Article describes the relationship between the amount paid through the claims department and the amount paid in Superior Court judgments and costs. The average payments that successful claimants received were tiny, averaging just $127.32 in the claims department.

This Article presents a series of research and methodological critiques. No scholar has assembled a universe of data linking business operations, injuries, and claims to litigation and appeals. Empirical researchers who seek to understand compensation systems should collect data on the operation of claims departments. Today, such studies must include insurance claims departments. If I could find these data from more than a century ago, researchers today could do likewise.  Second, the common idea that injured claimants bargain in the shadow of the law is naïve. The claims department casts its own, longer shadow than the trial court.  The final critique focuses on anyone who relies upon reported appellate cases as representations of any realm below. Appellate cases, especially those in casebooks, misrepresent the trial court and, more dramatically, misrepresent the empirical world of the claims department and business operation.

--Dan Ernst

Sinanis on Exemplary Damages in 18th- and 19th-Century England

Nicholas Sinanis, Lecturer on the Faculty of Law at Monash University, has published open access Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England in the American Journal of Legal History:

A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.

--Dan Ernst

Tani on the History of the Tort of "Wrongful LIfe"

Last year, I had the privilege of participating in the Clifford Symposium at DePaul College of Law -- an annual convening of torts scholars. The symposium theme in 2023 was "new torts." The published versions of the symposium papers are now available. My contribution is titled "When a Wrong Creates a Life: Tort Responses to Children Born From Institutional Sexual Violence." Much of the article draws on history, so I'm noting it here. Here's the abstract:

Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a guardian, the resulting child sought monetary compensation from the state for the disadvantages that flowed from these circumstances. Importantly, the lower court that initially considered this claim found it within the bounds of what tort law could and should provide. But a different interpretation prevailed at the appellate level, and, for historically contingent reasons, Williams v. State largely disappeared from view. Instead, cases from the medical negligence context came to dominate judicial discussions—and rejections—of the seemingly “new tort” of “wrongful life.” This Article urges a reconsideration of Williams v. State and the sub-set of “wrongful life” cases that it represents—namely, cases involving (1) nonconsensual intercourse and impregnation in an institutional setting, resulting in a child, and (2) an institutional defendant that arguably violated a duty of care by allowing this sequence of events to occur. Such reconsideration is warranted for several reasons, including evidence that such incidents continue to occur in institutional settings (nursing homes, residential treatment facilities, prisons, etc.); post-Dobbs changes to state-level abortion laws, which will increase the number of pregnancies that lead to live births; and theoretical and doctrinal developments within tort law itself. 

The full article is available here. Other legal-historical contributions to this symposium include Molly Brady on "cottages as public nuisances" (previously noted here) and Kenneth S. Abraham & G. Edward White on "How an Old Tort Became New: The Case of Offensive Battery."

-- Karen Tani

Landmark Cases on Punitive Damages

Landmark Cases in the Law of Punitive Damages, edited by James Goudkam, University of Oxford, and Eleni Katsampouka, Kings College, London, has been published by Hart/Bloomsbury.

Punitive damages are private law's most controversial remedy. This book traces the development of the jurisdiction from the foundational decisions of Huckle v Money and Wilkes v Wood in England, to leading modern cases such as Harris v Digital Pulse Pty Ltd in Australia, Whiten v Pilot Insurance Co in Canada, Couch v AG (No 2) in New Zealand, PH Hydraulics and Engineering Pte Ltd v Airtrust (Hong Kong) Ltd in Singapore and Mathias v Accor Economy Lodging, Inc and State Farm Mutual Automobile Insurance Co v Campbell in the United States. Many of the decisions addressed are not only landmarks regarding punitive damages but are among the most important judgments delivered in private law more generally.

The essays, which are written by leading scholars from a wide range of jurisdictions, cast new light on the cases covered. They do so by examining their historical antecedents and the impact that they have had on the development of the law. The full spectrum of issues regarding punitive damages is addressed including the insurability of punishment, constitutional constraints on the remedy's availability and whether the award should be confined to particular causes of action. The collection will be of interest to all scholars and students of private law. It concentrates on common law cases although civilian perspectives, drawn from France and Germany, are also offered.

Discount Price: £96.  Order online at www.bloomsbury.com & use the code GLR AQ7 to get 20% off!

--Dan Ernst.  Table of Contents after the jump.

Gifford, Boldt & Robinette on Torts and Originalism

Donald G. Gifford and Richard C. Boldt, University of Maryland Francis King Carey School of Law, and Christopher J. Robinette, Southwestern Law School, have posted When Originalism Failed: Lessons from Tort Law, which is forthcoming in the Florida State University Law Review:

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first is practical: the historical meaning and intended application of constitutional provisions often are elusive. In some instances, courts simply commit outright errors in constructing the historical narratives on which the decisions rest. In other cases, the use of thick originalism requires judges to exercise wide discretion to determine where to begin a historical inquiry and which sources to consult. This wide discretion, and the related problem of judicial bias associated with highly discretionary interpretive practices, are the very problems originalism is said to solve. The use of thick originalism may create the appearance of objectivity, but in fact considerable subjectivity of judgment is simply buried in the construction of the histories governing the out-come in these cases. The second problem associated with the use of thick originalism is normative. The use of a rigid form of originalism to define the contours of constitutional rights interrupts the ordinary operation of the common law and imposes on today’s society the values of the dominant white, male, and propertied power structure existing at the time of the adoptions of the Constitution and the Fourteenth Amendment. Society today is different than in the largely agrarian communities that composed the United States at the Founding. Solutions to Founding-era problems do not necessarily translate to the modern United States.

--Dan Ernst

Dripps on the 4th Amendment and the Common-Law of Eavesdropping

Donald A. Dripps, University of San Diego School of Law, has posted Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping), which is forthcoming in the William & Mary Bill of Rights Journal:

Man plays the spinet (NYPL)

Judges and scholars have long debated the Fourth Amendment’s application to eavesdropping, and the amendment’s relationship to the common law torts of trespass and false arrest. Remarkably, neither the jurisprudence, nor the commentary, has given more than cursory consideration to the common law of eavesdropping. This Article is the first to consider in detail the common law of eavesdropping as it relates to the Fourth Amendment.

The Fourth Amendment’s text does not protect “persons, houses, papers and effects” but rather protects the right to be secure in persons, houses, papers and effects. The common law treated eavesdropping as a violation of the right to the security of the home. Trespass actions were part of these protections, but only a part. The prevailing focus on founding-era tort law supports interpretations based on private-law property rights, enforced ex post by actions for damages. The common law’s indictment of eavesdroppers as a public nuisance points in very different directions.

Eavesdroppers could be arrested in flagrante as “persons of ill fame” under an ancient English statute. Eavesdroppers could also be indicted as a public nuisance under the common law of crimes. These doctrines were well-established in America as well as in England.

Eavesdropping was thought to threaten the security of all the homes in the community. The public-nuisance offense was not completed by clandestine listening alone. Indictments had to allege repeated offenses and public dissemination of the overheard conversations. There was no standing requirement, as required to recover damages in tort or obtain an injunction. The remedy was not retrospective damages, but fine and jail unless the eavesdropper recruited sureties to post bond for the eavesdropper’s good behavior going forward.

Reading the Fourth Amendment by the light of the common law does not lead inevitably to a property-based model. The common law’s treatment of eavesdropping indicates that the sanctity of the home was protected against clandestine surveillance, not just against physical invasion. The common law of crimes saw the collection and the dissemination of private information as distinct legal wrongs. The remedy aimed to prevent future violations, rather than to redress completed ones. Important implications follow for the difficult issues that face us today when we try to apply the Fourth Amendment in a digital world. 

Kadens on Fraud Prevention in Historical Perspective

Emily Kadens, Northwestern University School of Law, has posted The Persistent Limits of Fraud Prevention in Historical Perspective, which has been published as 118 Nw. U. L. Rev. 167 (2023):

Fraud has been ubiquitous throughout history, and so have the methods of fraud prevention. History demonstrates that no anti-fraud measures have fully succeeded in eliminating deceptive market behavior. Instead, this Essay uses evidence from premodern England to argue that societies and individual contracting parties balance tolerating a certain amount of fraud against the costs of fraud prevention. 

--Dan Ernst

Brady on Cottages as Public Nuisances

Maureen E. Brady, Harvard Law School, has posted  Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor, which is forthcoming in the DePaul Law Review:

Cottage Homes of England (NYPL)

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters.

The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear.

Second, the story of the cottage illustrates the uneasy—and often, ineffective—ways that the state has deployed land use regulation to manage the poor. The story of the cottage evokes the old adage: “everything old is new again.” Cottages became targets because many sprung up informally on common property in an era in which the state was formalizing private title—not so different from the pressures on, and persistence of, informal settlements in some parts of the world today. Regulators sought to proscribe cottages to control the movement of labor while simultaneously limiting the accumulation of the poor, for a mix of seemingly legitimate and illegitimate reasons (compare the public health and safety risks of crowding to the notion that poverty and cohabitation leads to idleness). Centuries later, regulators and the citizens voting for them put forth a similar mix of motives to justify regulating apartment buildings and other forms of multifamily housing. The inclusion of cottages in Blackstone’s list illustrates the enduring appeal of land use law in all its forms—the tort law of nuisance, contract law, and regulation—as a means of defining and managing real and perceived social harms.

--Dan Ernst

Legal History in the 28th Annual Clifford Symposium on Tort Law & Social Policy

This past spring, the DePaul Law Review published papers from the 28th Annual Clifford Symposium on Tort Law and Social Policy. The theme of the symposium was "Litigating the Public Good: Punishing Serious Corporate Misconduct." There are a few pieces that may be of interest to LHB readers: 

"'A Force Created': The U.S. Chamber of Commerce and the Politics of Corporate Immunity," by Myriam Gilles (Cardozo School of Law). An excerpt from the Introduction (footnotes omitted):

Upon its founding in 1912, the U.S. Chamber of Commerce was conceived as a “force created” to exert “a beneficent influence upon our national life” by integrating the views of the business community into governmental policies and regulations. That a force was created is beyond question. Beneficence is a separate issue.

This is the story of how the Chamber transformed from that early vision of a public-minded, apolitical organization intent on providing “enlightened economic policymaking advice . . . for the benefit of the nation” into its current form—a partisan enterprise focused on securing, among other things, broad and lasting corporate immunity from suit.

"Crime and Tort: Reflections on Legal Categories," by Alexandra D. Lahav (Cornell Law School). An excerpt from the Introduction: 

This Essay investigates how a particular category of torts—suits for injuries caused by dangerous products—has been seen alternatively as based in contact or criminal law—in addition to, or sometimes instead of, an independent doctrine sounding in tort that arises from a duty not to harm others. This category problem has plagued courts even though, since the 1850s, courts have held that manufacturers had a duty enforceable by private suit not to sell harmful products. The Essay tells the story of regulation of one very dangerous product, milk, in the late nineteenth century as a window into the meaning of how conduct is categorized—the significance of putting torts at the periphery rather than the center. The meanings of legal categories map on to conceptions about how society should be governed that continue to be at the heart of many doctrinal and policy debates today. These include: how much should private ordering govern? To what extent should harm lie where it falls, especially when it comes to untested or untried products, and in what cases should manufacturers be held responsible for harm? What kind of fault is in play in the sale and distribution of harmful products and is this something to be policed by purely public entities or by the individuals harmed or both? Should there be an intent requirement, or is a showing of causation sufficient? What institutions—criminal, public health, or civil justice—are best situated to provide redress in cases where people are harmed?

-- Karen Tani

Russell on Streetcars and the Subsidy Thesis

Thomas D. Russell, University of Denver Sturm College of Law, has posted Blood on the Tracks, which appears in the Seattle University Law Review:

Scene at Capitol Fire, 1911 (NYPL)

Streetcars were the greatest American tortfeasors of the early 20th century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.

This article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial-court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.

Professor Gary Schwartz and Judge Richard Posner have presented inaccurate empirical data concerning early twentieth-century personal injury litigation. Professor Gary Schwartz was wrong to characterize tort law as generous. Likewise, Judge Richard Posner has been wrong to call tort law efficient. Like Professors Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small. However, I see no deliberate efforts to subsidize the industry.

--Dan Ernst

Guido Calabresi and the “Economic Style,” Part 4 (Conclusion): A “Mixed System”

This post, by Karen Tani (University of Pennsylvania), is the fifth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber.

In three earlier posts in this series (here, here, and here), I suggested the fruitfulness of placing Guido Calabresi’s life alongside the rise of what sociologist Elizabeth Popp Berman has called “the economic style of reasoning”—an approach to governance that flourished in the later decades of the twentieth century and has now become embedded in institutions (e.g., the Congressional Budget Office) and in law (e.g., the consumer welfare standard in antitrust law, executive orders mandating cost-benefit analysis of proposed regulations). [All the Berman quotes in what follows are from Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton University Press, 2022) (“TLE”).] This rise to prominence merits our attention, Berman argues, because, over time, it narrowed the boundaries of what is politically possible, in domains ranging from environmental policy, to social welfare provision, to the governance of regulated industries. It did so by de-legitimizing or crowding out political claims that conflicted with those of the “economic style,” including “claims grounded in values of rights, universalism, equity, and limiting corporate power” (TLE 4). The result, in Berman's assessment, was to reinforce a “conservative turn” in American politics--even though “the most important advocates for the economic style in governance consistently came from the center-left” (TLE 13, 19). (For the fullest and most careful explanation of the argument, please read the book!)
 
In my previous posts, I argued that Calabresi’s scholarship has resonances with “the economic style,” but also sits outside of it. The insider/outsider character of Calabresi's work was a natural outgrowth of his unique path into Law & Economics. It also reflects his real-time reactions to the success of Law & Economics. As he helped that field expand and thrive, he also felt compelled to point out the limitations of economic theory and methodology. The question I ended my last post with was: Did Calabresi’s nuanced approach to Law & Economics help legitimize and spread the less nuanced “economic style” of Berman’s concern? Or (and?) did his work plant seeds of skepticism and resistance?
 
A historian cannot answer this question with any certainty (especially not in a short blog post!), but I will surface some evidence that seems relevant to me. In doing so, I must also acknowledge my affection for the subject of this post (I was one of Calabresi’s law clerks in 2007-08 and cherish that experience). That relationship colors my views, but also, I hope, gives me insight. In what follows, I’ll discuss (1) scholarship (which I’ll bundle with teaching), (2) judicial decisions, and (3) network.

"Guido Calabresi Lauded at His Final Torts Class"

I’ve already discussed some of Calabresi’s most important scholarly writings, so I won’t repeat myself here. I’ll simply add this brief assessment. His writings—which informed six decades(!) of teaching at Yale Law School—undoubtedly did give some people their first exposure to the use of economic thinking in law and governance. That matters. Among the consumers of Calabresi’s ideas were powerful people in politics, policymaking, legal practice, and academia, as well as people who would become powerful in those domains later in life.  Moreover, I suspect that Calabresi’s stature, reputation, and charisma gave weight to his ideas. In The Rise of the Conservative Legal Movement, Steve Teles also credits Calabresi with giving Law & Economics respectability, by rebutting the notion “that it was an entirely conservative, University of Chicago project” (Teles 99).

Guido Calabresi and the “Economic Style,” Part 3: Partial Views and “Pearls Beyond Price”

This post, by Karen Tani (University of Pennsylvania), is the fourth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber.

In earlier posts in this series, I suggested the fruitfulness of placing Guido Calabresi’s career alongside the rise of what sociologist Elizabeth Popp Berman has called “the economic style of reasoning”—an approach to governance that flourished in the later decades of the twentieth century and remains prominent. [All the Berman quotes in what follows are from Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton University Press, 2022) (“TLE”).] My first post described Calabresi’s education in economics and in law, as recounted in Outside In. My second post turned to his scholarship and began to explore its fit with “the economic style.” When I left off, I had covered Calabresi's writings on “the decision for accidents” (a.k.a. “the cost of accidents”), and I had mentioned both his excitement and his discomfort at the growing influence of Law & Economics. Looking back on this period, Calabresi said this to Silber: “Because of the way the field was taking off, I was becoming afraid that people would start to think of the economic approach to law as the only thing that is legal scholarship” (OI, v.1, 332).*

This worry is apparent in the use of the phrase “one view of the Cathedral” in the subtitle of Calabresi’s famous 1972 article (with Douglas Melamed) on “Property Rules, Liability Rules, and Inalienability.” Calabresi explains:

[B]ecause of a generic reference Harry Wellington made, I called it “One View of the Cathedral.” I do not think Harry was talking about law and economics at the time; he was talking about art and about how you couldn’t understand the cathedral at Reims by looking at only one of Monet’s impressionist paintings. To understand . . . you had to look at all the paintings. I liked that, and I used it because I wanted to say that law and economics was one important way of looking at legal issues, but it was not the only way.

(OI, v.1, 331). [Image at right: Rouen Cathedral, West Façade, Sunlight, 1894 by Claude Monet, oil on canvas. Credit: National Gallery of Art.]
 
This caveat is important because the article undoubtedly did further expand economics into law--from Torts into Property and beyond. And the intervention was framed in such a way that others felt inspired to push further. As Silber’s commentary explains, “[the article] attracted attention quickly, and a small swarm of academics stepped forward to build upon the ‘Cathedral’ approach” (that is, a modeling approach, in which one plays with different possible configurations of private law rights and remedies and asks about their consequences) (OI, v.1, 337). Soon Calabresi and Melamed’s schema “was being applied to scores of legal fields of study and invoked in many cases” (OI, v.1, 339).