Nolan on Winfield on Tort

Donal Nolan, University of Oxford Faculty of Law, has posted Professor Sir Percy Winfield (1878-1953), which appears in Scholars of Tort Law, ed. James Goudkamp and Donal Nolan (Hart 2019):

This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.

–Dan Ernst

Witt Reviews Holdren's "Injury Impoverished"

John Fabian Witt, Yale Law School, has posted Radical Histories/Liberal Histories in Work Injury Law, a review forthcoming in the American Journal of Legal History of Nate Holdren’s Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era:

Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.

--Dan Ernst

Keller on Common-Law Qualified and Absolute Immunity

 Scott A. Keller, Baker Botts LLP, has posted Qualified and Absolute Immunity at Common Law, which is forthcoming in the Stanford Law Review:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed — short of eliminating the doctrine altogether. While there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under 19th century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This article therefore provides the first comprehensive review of the 19th century common law on government officer immunities. In particular, it canvasses the four 19th century tort treatises that the Supreme Court consults in assessing officer immunity at common law: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, 19th century decisions.

These historical sources overwhelmingly refute the modern prevailing view among commentators about one critical aspect of qualified immunity: The 19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties — like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the 19th century common law: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden of proof.

These three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that will sufficiently protect the separation of powers without needing the “clearly established law” test — which pervasively denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial. In sum, restoring the 19th century common law on state officer immunities could address many modern problems with qualified immunity.

--Dan Ernst

Weekend Roundup

• LaborOnline, the blog of the Labor and Working-Class History Association, has been hosting a symposium, introduced by Eileen Boris, on recent LHB Guest Blogger Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era.

•  Catch the latest Legal History Podcast: Philip Thai discusses his book, The War on Smuggling: Law, Illicit Markets, and State Power on the China Coast with Siobhan Barco. We announced the book here. 

• Over at Strict Scrutiny, Adam Cohen is interviewed about his book Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck.

• The deadline for applying to the previously announced constitutional history seminar with Josh Chafetz and David Pozen has been extended to September 9.

• The 13th annual Court History and Continuing Legal Education Symposium, “An Election Fraud Case for the Ages: U.S. v. Aczel,” will take place in a virtual session Friday, Nov. 20 from 4 to 5 p.m.  Journalist Sasha Issenberg will explore the story behind U.S. v. Aczel, a trial in federal court of the mayor, chief of police, and other prominent officials in Terre Haute, Indiana, for voter suppression in 1914.  More.

• ICYMI: Martha Jones's search to find out if her grandmother voted (NYT), and Felice Batlan discovers that her great-grandmother lost her US citizenship under the Expatriation Act of 1907 (WaPo).  Garrett Epps on birthright citizenship and Kamala Harris (The Atlantic).

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

Dingle's Conversations with Prichard

Lesley Dingle, University of Cambridge, has posted Conversations with Michael J. Prichard: The Fun of Legal History and the Triumph of Research Over Administration:

Michael Prichard was born before the Second world war and lived through the bombing and destruction of much of London. When he entered university in 1945, King’s College London had reoccupied its old quarters in the badly-damaged Somerset House, and along with LSE and UCL had pooled teaching resources to overcome staff shortages and accommodation damage. This inadvertently gave Michael a rich pool of mentors upon which to found his career, and who served him well in later years. He entered Queens’ College Cambridge in 1948 and experienced the unique post-war phenomena of the “returning warriors”, which continued, along with the “weekenders”, when he became a fellow at Gonville & Caius in 1950. Here he has remained, and is still a Fellow, seventy years later.

Michael Prichard (Squire Law Library)

His legacy is a fund of memories of a life-long journey through changing landscapes of legal research, teaching, and college and faculty administration. I first interviewed Michael for the Eminent Scholars Archive in 2012, where his biography and general academic reminiscences are set forth. I now revisit aspects of these, following a conversation I had with David Yale for ESA in November 2019. David was Michael’s career-long colleague, and his interview shone new light on their decades of joint endeavour unravelling the development of maritime law in the British Isles. Shortly after David’s reminder of the magnitude of their project, an encounter with Professor David Ibbetson, and most-recently a meeting with Michael, now in his 93rd year, have spurred me to summarise particular aspects of Michael’s varied research projects. In the process, I shall emphasise the overall sense of adventure, and enjoyment - in short “fun”, with which he explored the history and jurisdictional intricacies of the Admiralty Court (jointly with David Yale), presented his enlightened insights into the evolution of aspects of tort law, and explained his research of the few esoteric conundrums in which a retiree was able to indulge.

--Dan Ernst

Abraham and White on Modern Tort Liability

Kenneth S. Abraham and G. Edward White, University of Virginia School of Law, have posted Rethinking the Development of Modern Tort Liability, which is forthcoming in the Boston University Law Review:

The standard story of the development of modern tort liability is straightforward, but it turns out to be seriously misleading. The story is that, in the second half of the nineteenth century, negligence liability replaced the pre-modern forms of action as the principal basis for the imposition of liability for accidental bodily injury and property. Suits for negligence began to be brought, and insurance against liability for negligence was introduced. The tort system, and the liability insurance system that had arisen to accompany it, were then quiescent for the next half-century. Around 1970 tort liability began to expand substantially. For several decades there have been contentions that at that point there was an “explosion” of tort liability.

The problem with this story is that it trades on a misleading caricature of what was occurring in the tort system before 1970. Tort law doctrine was indeed largely quiescent during the middle four or five decades of the twentieth century, just as the story suggests, until the well-known doctrinal expansions of 1965 to 1985 began. But tort liability was not quiescent at all. The magnitude of payments made to tort victims increased exponentially between 1920 and 1970 – by some measures, at a much greater rate than after 1970 -- and the magnitude of premiums paid for liability insurance increased in the same exponential manner. In addition, after liability insurance was introduced late in the nineteenth century, it did not simply become a behind-the-scenes source of financing for tort defendants, the way a passive guarantor stands behind a debtor. Rather, between 1920 and 1970, the courts confirmed, created, and extended liability insurers’ duty to defend their policyholders in tort suits and their duty to accept reasonable offers to settle tort suits against their policyholders. Liability insurers’ active performance of those duties created an unrecognized dynamic cycle that intensified the growth of tort liability, bringing it to the point where it stood in 1970. This Article rethinks the conventional story, by examining the important developments in tort liability and liability insurance that preceded the “explosion” of tort liability, and offers historical, political, and intellectual reasons why the misleading conventional story took root.

--Dan Ernst

Howlin on Compensation for Malicious Damage to Property in 19th-Century Ireland

Niamh Howlin, Sutherland School of Law, University College Dublin, has posted Compensation for Malicious Damage to Property in Nineteenth-Century Ireland:

This Working Paper examines aspects of the law relating to compensation for malicious damage to property in Ireland. Its main focus is the legislative framework of the nineteenth century, particularly the Grand Juries (Ireland) Act 1836 and the Malicious Injury Act 1861, as well as the procedural and substantive reforms introduced by the Local Government (Ireland) Act 1898. Compensation for malicious injuries in nineteenth-century Ireland was unique in the United Kingdom, with increasing divergence between England and Ireland in evidence from quite early in the century.

--Dan Ernst

AJLH 59:4

American Journal of Legal History 59:4 (December 2019) is now available online:

A Counter-Culture of Law: Jurisprudential Change and the Intellectual Origins of the Critical Legal Studies Movement, by Juhana Salojärvi

Railway Sparks: Technological Development and the Common Law, by Mark L Wilde

Machinations of the British Medical Association: Excluding Refugee Doctors from Queensland’s Medical Profession, 1937–1942, by Gabrielle Wolf

Book Review

David Harbecke, Modernisation Through Process. The Rise of the Court of Chancery in the European Perspective, reviewed by Lorenzo Maniscalco

--Dan Ernst

Scholars of Tort Law: An Essay Collection

Out from Hart: Scholars of Tort Law, edited by James Goudkamp, Professor of the Law of Obligations at the University of Oxford, and a Fellow of Keble College, Oxford, and Donal Nolan,  Professor of Private Law at the University of Oxford, and a Fellow of Worcester College, Oxford:

The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.

Eleven of the thirteen contributors are male.  TOC after the jump:

Russell on Streetcar Torts

Thomas D. Russell, University of Denver Sturm College of Law, has posted Blood on the Tracks: Turn-of-the-Century Streetcar Injuries, Claims, and Litigation in Alameda County, California:

Richmond Road 1887 (NYPL)

Streetcars were great American tortfeasors of the turn-of-the-century, injuring approximately one 331 urban Americans in 1907. In this empirical study, I consider the entire run of streetcar injuries, claims, trial-court suits, and appeals. My conclusions are based upon data drawn from the claims department records of Alameda County's principal street railway company, from all of the personal injury suits filed in the county's Superior Court, from all appellate cases involving the street railway company, and also from other sources concerning the street railway industry.

Plaintiffs in street railway cases very rarely won their cases against the company, and when they did, they won little money. In terms of the bite taken out of the street railway company, I characterize the Superior Court as a flea. I argue that Professor Gary Schwartz was wrong to characterize tort law as generous and that Judge Richard Posner is wrong to call tort law efficient. Like Professor Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small, but I see no evidence of deliberate efforts to subsidize the industry.

I argue that the term "dispute pyramid," which is common among Law & Society scholars, is misleading. I propose that we instead think in terms of a salmon run, with very large drop-offs from the levels of injuries to claims and, especially, to litigation.

I also examine in detail the operation of the street railway's claims department. I describe the relationship of the amount of money paid out through the claims department to the amount paid out in Superior-Court judgments and costs. I show that the average amounts of money that successful claimants received were very small indeed and argue, contra Posner and others, that the bargaining that took place in the claims department was very distant from the level of the trial court. For example, where Posner derived an average figure of about $5,000 for wrongful death claims using appellate data, I show that in the claims department, claimants in death cases averaged $127.32.

I also consider some of the fine work done by constitutive theorists, particularly Barbara Welke, of the University of Minnesota. I agree with most of her conclusions regarding the manner in which tort law instantiated gender norms, but I remain convinced that the operation of street railways, as social and economic activities, and also the conduct of trials had much more formative influence on norms of gender than did legal doctrine. That is, along with Chris Tomlins, I think that Welke makes too much of the formative influence of law on American discourse or ideology. This may be a small quibble.

I adapt the methods of the constitutive theorists and try to build upon Welke's excellent work to show that the streetcar companies helped to instill norms of negligence within their women riders. This made some women safer and kept others from making claims when they were injured. I argue that the street railway companies' ability to shape norms of negligence show another flaw in Posner's theory regarding the regulatory effect of tort law.

Earlier drafts of this work have been cited in the Harvard Law Review, Vanderbilt Law Review, Tulane Law Review, Wisconsin Law Review, Harvard Women’s Law Journal, Law & Social Inquiry, Journal of Tort Law, and the Connecticut Journal of Insurance Law. The author is looking for a place to publish this either as a long article or a monograph.

--Dan Ernst

Weekend Roundup

• Two items of interest from John Fabian Witt (Yale Law School): (1) He and other torts scholars (Mark Gergen, Paul Hoffman) have submitted an amicus brief to the U.S. Supreme Court in the current Section 1981 case Comcast v. National Association of African American-Owned Media. The brief challenges Comcast's characterization of a number of 19th-century torts cases and in doing so offers insights about the history of "but-for" causation as an element of negligence. (2) The latest issue of the New Republic includes his thoughts on "the shrinking legacy" of former Supreme Court Oliver Wendell Holmes, "first celebrity justice of the U.S. Supreme Court": why is Holmes veneration "in decline"?

• The 12th Annual Court History and Continuing Legal Education Symposium of the Historical Society of the U.S. District Court for the Southern District of Indiana will be devoted to the history of judicial confirmation.  The symposium includes the presentation, “Paths to the Bench: Southern District of Indiana Appointments from William E. Steckler to Gene E. Brooks,” by Doria Lynch and “a brief synopsis of the Chief Justice Robert B. Taney mural alternation project, which is part of the national trend to remove inappropriate historical symbols from public spaces.”  It will be held from 1 to 4:30 p.m. on November 1 in the Sarah Evans Barker Courtroom of the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis.   (The Indiana Lawyer.)

• John W. Kluge Center has announced the arrival of several scholars-in-residence at the Library of Congress.  The holder of the Kluge Chair in American Law and Governance is Andrea Campbell, the Arthur and Ruth Sloan professor of political science at MIT, who is working on a book project titled “How Americans Think About Taxes.” 

• Notorious RBG: The Life and Times of Ruth Bader Ginsburg is on exhibit at the National Museum of American Jewish History, 5th and Market Streets, Philadelphia, through January 12, 2020.

• Here at LHB we usually try to keep things nonpartisan, but we still feel obliged to note, in case you somehow missed it, the recent interview ASLH past-president Bruce Mann gave to CNN.  And, while we're on the subject of legal historian spouses to presidential candidates, thank you John Bessler for that shout out at the 2019 Hall of Fame Celebration of the Dubuque County Democratic Party.  DRE 

• Over at Jotwell: Binyamin Blum (UC Hastings) reviews Orna Alyagon Darr's Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine (CUP, 2018)

• ICYMI:  How Did Magna Carta Influence the U.S. Constitution? (History).  Frank Bowman on the history of impeachment in Rolling Stone.

• From the Washington Post's "Made by History" section: many historically informed observations about impeachment and President Donald Trump, including by Sidney Milkis (University of Virginia, Miller Center) and Daniel Tichenor (University of Oregon) (here); Thomas Balcerski (Eastern Connecticut State University) (here); and Doug Rossinow (University of Oslo) (here). Also Jessica Wang (University of British Columbia) on "How New York defeated rabies" and why "the city’s history with the disease offers a blueprint for eliminating deaths around the world." More.

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

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

Choosing Representative Cases from Many; Or, Privilege & Prejudice in 1865 Liverpool.

The Reverend James Kelly of Liverpool was not well liked. His spat with the church’s organist was bad enough, but Kelly’s diatribes against city officials drew public attention to this pugnacious – and litigious – clergyman. Seemingly anxious over the fate of Anglicanism, Kelly – who preached about the Protestant martyrs of Bloody Mary’s reign to a new generation – balked at the appointment of a Roman Catholic priest as chaplain in one of the city’s jails and railed against voters who had returned Liverpool’s first Jewish mayor that same fall. Not content to issue commentary from the pulpit, Kelly broadcast his opinions in the local newspapers.

While a number of local papers followed Kelly’s squabbles with local notables, Randall Sherlock’s Liverpool Mail did so with particular glee. Under the heading “Irish Scandal at St. George’s Church,” the weekly newspaper detailed the “wolfish”-ness of Irish clergy. It began with a diatribe against the Irish clergy in general and then proceeded to describe the barbarity of Kelly using the church for “potato-boiling” and his penchant for brawling (typical of Irish stereotypes as well) [1].

This fusillade of ethnic stereotypes did not even attempt a pretext of defending Catholics from Kelly. The attack on Kelly ran next to a column decrying fanatical Roman Catholic priests “running mad” overseas. Sherlock tried to apologize later. Kelly was unsatisfied, however, and sued. He won, but the jury awarded him a symbolically negligible single farthing. Kelly appealed for a new trial, believing himself entitled to higher damages. The justices of the Queen’s Bench disagreed.

I love the point in research where one gets to immerse oneself in a single case for some time. While this can happen regularly with high profile cases, it is rarer in the cases of ordinary men and women. Indeed, piecing together the ins and outs of a defamation case is not easy at all. Those which appear in law reports can contain more about precedent than on the case itself. Newspaper coverage can be as terse as a few lines, or can stretch out over multiple articles for months – even years – on end. Reconstructing a case can entail a great deal of additional research, and this is simply not feasible to do for over 600 cases. It’s as I concentrate on a cluster of cases that seem to illustrate a broader phenomenon that I really get to plunge into the weeds. I zeroed in on Kelly for an upcoming conference paper initially for pragmatic reasons; I knew that, in addition to the law report which I had in my electronic file, there were a further 80+ articles about the Rev. Kelly in the British Library Newspaper Database. There’s often quite a bit to be unpacked even from a few lines about a trial. There is all the more to be uncovered when one has not only 80 articles, but seemingly verbatim coverage of the trials among them.

If I were telling a history of case law, I would address the two legal issues at issue in Kelly v. Sherlock. First, the Queen’s Bench found that they had no standing to allow for a new trial solely on the basis of insufficient damages. That would illegitimately circumvent the jury’s role. Second, the judge at the assize level provides a particularly eloquent defense of a clergyman’s privilege of preaching to his flock as he sees fit. His phrasing would be republished in legal text books for years [2]. I suppose these points will make their way into my account, but I, like many of you, am more interested in the case’s implications for society at the time. I am want to explore through newspaper and legal reports how a community works out norms of proper authority and the acceptable limits on stereotyping. Here, as in quite a few cases involving the clergy, the question centered on the authority of the pulpit and the privilege (even the duty) of the clergyman (as opposed to the newspaper) to criticize different social groups as a whole. Was Kelly’s behavior a proper subject of public interest (as Sherlock claimed)? Even if it were, what were the boundaries between proper discussion and malice or ridicule?

During this period, standards for legal judgment of such cases were beginning to crystalize. That is important. More interesting still, are the disagreements, however, as one finds in the columns of the newspaper, among judges and juries, and between trials. It is in these moments that one finds critical tensions over who gets to constitute community, its boundaries, and the language that helps to keep it in balance. Perhaps not surprisingly, more elite commentators seemed embarrassed by both Kelly and Sherlock—though Kelly especially. His brand of evangelicalism did not sit well with those who prized cosmopolitan rationality and were more accepting of religious heterodoxy in civil society [3]. Elite commentators themselves were not entirely enlightened, however: keen to distance themselves from Kelly’s bigotry, these commentators attributed it to the “hot-blooded” Irish. Sherlock lost his case because his diatribe against Kelly the individual descended to ridicule; but more genteel anti-Irish stereotyping, which suffused a good portion of those 80+ articles, remained within the bounds of community acceptability [4].

[1] “Irish Scandals at St George’s Church”, Liverpool Mail, February 6, 1864, p. 5. The newspaper continued the diatribe a week later: “Irish Scandals at St George’s Church, No. II”, Liverpool Mail, February 13, 1864, p. 5.

[2] 686 Kelly v Sherlock, Queen's Bench Division, 13 June 1866, (1865-66) L.R. 1 Q.B. 686. See, for example, John Townsend, A Treatise on the Wrongs Called Slander and Libel and on the Remedy by Civil Action for those Wrongs, (London: Steven & Haynes, 1868), p. 354-355.

[3] See, for example: “The Finance Committee,” Liverpool Mail, April 9, 1864, p. 4; and “When a man embarks on a sea of controversy…,” The Englishman, November 5, 1864, p. 5.

[4] “The Rev. James Kelly,” Pall Mall Gazette, August 16, 1865, p. 1.  

--Caroline Shaw

Krishnan on Bhopal in the Federal Courts

Jayanth K. Krishnan, Indiana University Maurer School of Law, has posted Bhopal in the Federal Courts: How Indian Victims Failed to Get Justice in the United States, which is forthcoming in the  Rutgers University Law Review (2020):

35 years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (UCIL), which had as its parent company, the American-based Union Carbide Corporation (UCC). Thousands were killed, with many more injured. 145 cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the Multi-District Litigation (MDL) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens opinion, which stated that the Indian courts – and not the U.S. federal judiciary – were the proper venue for hearing these claims.

Between 1986 and 1993, Judge Keenan dismissed all of the other MDL-Bhopal cases he heard. Then, between 2000 and 2014 a set of distinct, non-MDL Bhopal matters appeared in front of Judge Keenan. In all of these too, he issued dismissals. Indeed, the original MDL-process – coupled with the existence of internal federal courthouse rules – created a type of path dependence, allowing for all of the Bhopal-Union Carbide matters to come before Judge Keenan.

The thesis here is that following the MDL-consolidation, Judge Keenan became only more deeply wedded to the position he staked-out back in 1986. Subsequent, non-MDL Bhopal plaintiffs, seeking an independent assessment of their claims, found themselves tethered to the initial MDL-decision from years past. The broader lesson – beyond just this case study – is that in order for deserving plaintiffs to receive a fresh review in federal court, there needs to be an alternative imagination for how to deal with later cases that, although seemingly connected, are nevertheless distinct from the earlier MDL-process.

 --Dan Ernst

Weekend Roundup

• A new issue (2:1) of The Docket–the online sidekick of Law and History Review–has gone live.  Check it out! 

• The American Council of Learned Societies has announced its fellows for 2019, among them Laura Edwards (for “Only the Clothes on Her Back: Textiles, Law, and Commerce in the Nineteenth-Century United States”); Amanda H. Frost (for “Unmaking Americans: A History of Citizenship Stripping in the United States”); Katherine Unterman (for "The Colonial Constitution: Law and Empire in the US Territories”); and Kimberly Welch (for “Lending and Borrowing Across the Color Line in the Antebellum American South”).

• YLS's John Fabian Witt's lecture, To Save the Country? National Emergencies from Lincoln to Trump, delivered at Columbia University’s Center for American Studies on March 28, is now up on YouTube.

• "Voices of the Movement" is a series of podcast interviews of "veterans of the civil rights movement" conducted by the Washington Post's Jonathan Capehart. Available now is episode 1: "The day Martin Luther King Jr. died."

• If you’re in the mood for a review essay with a point-of-view, try, while it’s still open access, Nan Enstad's The “Sonorous Summons” of the New History of Capitalism, Or, What Are We Talking about When We Talk about Economy? from Modern American History 2:1.  H/t: JLG 

• The Franklin D. Roosevelt Presidential Library and Museum and the International Labour Organization will present the symposium Together, We Win: FDR, Frances Perkins and the ILO at the Library’s Henry Wallace Center on Monday, April 15, 2019.

• Here’s some timely and unfortunately apt comparative constitutionalism: Lénárd Sándor, Chief Counsel to the Constitutional Court of Hungary and, currently, a visiting foreign fellow at the Federal Judicial Center, in conversation with Jeffrey Rosen.

• And, in other news from the FJC, check out the most recent addition to the Center's unit to our Famous Federal Trials series, U.S. v. Guiteau, written by Winston Bowman.

• ICYMI: In WaPo, Petula Dvorak’s appreciation of an exhibit on consumer advocacy at the National Museum of American History.   A Look at Dover [NH]’s Legal History, Courts, and Jurists. Sean Wilentz on "why a merciful God invented second editions."

• Postdoc opportunity at McGill's Indian Ocean World Centre: details here. The deadline is May 15, 2019.

• Also for early career scholars: Oxford's Centre for Socio-Legal Studies has a Call out for a "Law in Context" Early Career Workshop. Those applications are due July 10, 2019.

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

CFP: Autonomy in Private Law

[We have the following CFP.  Please note: the deadline is January 20, 2019, midnight EST.]

Autonomy in Private Law: Past, Present, Future.  Organization: The Private Law Junior Scholars Conference.  June 19-20, 2019, Tel Aviv University Faculty of Law, Safra Center for Ethics.  @PLJS_conference

The Private Law Junior Scholars Conference is a collaboration between the law faculties of the University of Toronto and Tel Aviv University. It aims to create a forum for junior researchers from around the world to exchange about private law and different aspects of private law scholarship. The conference provides a select number of doctoral candidates, post-doctoral researchers and junior faculty (pre-tenure) with a unique opportunity to present their work and receive meaningful feedback from senior faculty members and peers. Last year’s conference, themed ‘Public Aspects of Private Law’, received 70 submissions. A total of seven presentations were selected by the organizers and leading private law scholars from the universities of Tel Aviv, Toronto and Yale, which included Hanoch Dagan, Avihay Dorfman, Larissa Katz, Daniel Markovits, Ariel Porat, and Arthur Ripstein.

This Year’s Topic: Autonomy in Private Law: Past, Present, Future  .Autonomy has long stood as the central pillar of conventional scholarship in private law. Much of private law, as depicted in these accounts, is built around the ideal-typical vision of autonomous agents as the relevant legal subjects, and frequently, private law is also claimed to realize and enhance autonomy. The assumption of the existence and desirability of autonomous agents and agency appears to be shared by widely diverging approaches to private law.

Private law’s autonomy-paradigm is, however, increasingly challenged by alternative theoretical accounts of the field that identify freedom as private law’s central pillar, and/or stress the relational dimension of private law. Additional challenges emanate from societal and technological developments that create new areas of power imbalances. At the same time, precisely because of its perceived emphasis on autonomy, private law might seem to offer a promising normative framework for addressing some pressing societal problems.

These challenges and promises invite further reflection about the place of autonomy in private law’s past, present and future. The 2019 Private Law Junior Scholars’ Conference aims to explore these issues, shed light on resulting tensions, and develop possible future perspectives. We invite papers that explore the overall conference topic from different theoretical and methodological vantage points, including historical, comparative, empirical, and critical perspectives.

Barbas's "Confidential, Confidential"

Samantha Barbas, Buffalo Law, the author of et al. Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom (Stanford University Press, 2017), and The Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015, has published Confidential Confidential:The Inside Story of Hollywood's Notorious Scandal Magazine (Chicago Review Press):

Confidential Confidential presents a thoroughly researched history of America's first celebrity gossip magazine and the legal disputes that led to its demise.

With an extensive network of informants, Confidential Magazine soiled celebrities' pristine reputations by publishing the stars' scandalous secrets including extramarital affairs, drug use and taboo sexual practices in lewd detail. By 1955, Confidential was the bestselling publication on American newsstands, forcing many to question the scope of freedom of the press and society's moral obligation to censor indecent content. Ultimately, a slew of libel and obscenity lawsuits against the magazine - concluding in an infamous 1957, star-studded Los Angeles trial – led to Confidential's downfall.

Confidential Confidential provides readers an insider's view on how the magazine obtained its juicy stories and established the foundation for such future gossip publications as People, the National Enquirer and TMZ. Confidential's legacy endures in our ongoing obsession with sensationalism, gossip, and celebrity scandal.

Keating on Abraham & White, "The Puzzle of the Dignitary Torts"

Over at JOTWELL, Gregory Keating (USC Gould School of Law) has posted an admiring review of a recent article on the history of tort law: Kenneth S. Abraham & G. Edward White, "The Puzzle of the Dignitary Torts," Cornell Law Review 104 (2018). Here's a taste:

The history of the dignitary torts is indeed a puzzle. Why did scholarly interest in them disappear? Why are they still dormant even though dignity has built up a head of steam in both international human rights law and domestic legal developments such as same-sex marriage and the more general recognition of the dignity of LGBT persons? The Puzzle of the Dignitary Torts offers answers to these questions, and more. It also explores the concept of “dignity” and advances a jurisprudential argument that the dignitary torts were foreordained to wither on the vine. That argument is intuitive at first sight, but elusive on closer inspection. The basic idea is that because the common law creeps forward case by petty case it cannot build a body of law which is systematically organized around a highly general concept like “dignity”.

Read on here.

Engstrom on Cars and Torts

Nora Freeman Engstrom, Stanford Law School, has posted When Cars Crash: The Automobile's Tort Law Legacy, which appears in the Wake Forest Law Review 53 (2018): 293-336:

Everyone understands that the invention of the automobile has had a profound effect on daily life in America. It has transformed our workplaces, altered our neighborhoods, and radically changed our environment. But cars have never been perfectly safe, and, as the years have passed, injuries and fatalities have mounted. This Article contends that, just as motor vehicles have remade our culture, these injuries and deaths — some 3.5 million fatalities and counting — have catalyzed fundamental changes in the contours, purposes, and limits of our law.

Frye on Whether Tompkins Lied

Brian L. Frye, University of Kentucky College of Law, has posted The Ballad of Harry James Tompkins, which is forthcoming in the Akron Law Review:

On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won in a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state substantive law, not federal "general common law." While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins's account. This article argues that Tompkins and his witnesses were not telling the truth.

Goold on the Lost Tort of Moral Rights Invasion

Patrick Russell Goold, Qualcomm Fellow at the Harvard Law School, has posted The Lost Tort of Moral Rights Invasion, which is forthcoming in the Akron Law Review:

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply with international obligations.

This Article presents a history of moral rights protection that challenges, to a degree, that common historical narrative. The Article tracks how American courts adjudicated attribution and integrity disputes during the twentieth century. Doing so not only reveals that the American judiciary was more sympathetic to these claims than commonly appreciated, but, even more surprisingly, came close to developing a tort of moral rights invasion. While copyright historians know that courts have long provided proxy protection for moral rights under preexisting common law causes of action (e.g., defamation, unfair competition, privacy, etc.), what is not widely known is how frequently courts were willing to protect attribution and integrity interests directly under the banner of moral rights. This Article tells the story of how courts in the mid-twentieth century, applying state law, increasingly articulated a "sui generis tort" of moral rights invasion. It then proceeds to question why the moral rights tort stagnated and was forgotten about in the late twentieth century.