Speedy Fred Taylor and the Ironies of Enterprise Liability

Neither the academic literature nor the tort reform lobby has observed a deep irony in the American law of enterprise liability. The intellectual roots of enterprise liability lie in a late nineteenth-century movement to reengineer the workplace, a movement whose best known exponent was scientific manager Frederick Winslow Taylor. Along with a generation of managerial engineers, Taylor popularized broad ideas about managerial responsibility for the operations of enterprise—ideas that when loosed on the decentralized institutions of American tort law ultimately found one of their strongest expressions in the law of enterprise liability. Enterprise liability thus stands as one of the great twentieth-century examples of the unanticipated consequences of social action

Modernism and Antimodernism in the Federal Courts: Reflections on the Federal District Court for the District of Connecticut on the 100th Anniversary of Its New Haven Courthouse

The story of the federal courthouse on the New Haven Green is a perfect parable for the modern history of the federal district courts around the country. One hundred years ago, architect James Gamble Rogers built a post office with a courtroom attached as an afterthought. In the century since, the United States has built its lower federal courts into institutions of the first rank. If we want to understand the federal district courts and their contribution, including the District Court for the District of Connecticut, we need to be students of recent American history. And there is no better structure for encapsulating the story of the lower federal courts than a building built as if a post office for the ancients, repurposed as a temple of justice for moderns, backed by the authority of the federal government, and filled with people who for one hundred years now have heroically taken the rule of law to be a sacred mission

Constraint, Authority, and the Rule of Law in a Federal Circuit Court of Appeals

One hundred and twenty-five years ago, during the little-remembered presidency of Benjamin Harrison, Congress put in place one of the building blocks of our modem legal system. The Evarts Act, signed into law in 1891, created a new Article III federal court for the first time since the ill-fated and short-lived Midnight Judges Act of 1801

Final Remarks For Bob Gordon

I\u27m thrilled to be able to be part of this celebration of the man I think we should all start calling the Notorious RWG. I first encountered Bob Gordon-or rather, I first encountered his work­ in 1994. I was on a gap year between college and law school, working in the appeals bureau of Robert Morgenthau\u27s Manhattan District Attorney\u27s Office and applying to a history Ph.D. program. The office had a law library, complete with all the major law reviews. I decided that during my lunch hours I would read legal history in the law reviews so that I\u27d be at least a little bit ready for the J.D./Ph.D. program on which I had decided to embark

The Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law

For the past decade or so, important aspects of American tort law have sought to reaffirm tort\u27s ostensible commitment to individualized justice. In the courts, the elephantine mass of asbestos cases \u27 has produced a reaffirmation of what Justice Souter in Ortiz v. Fibreboard Corporation called the day-in-court ideal : our deep- rooted historic tradition that everyone should have his own day in court. The academy, in turn, appears to be in the midst of a sustained revival of the closely related idea that tort law consists in the reciprocal relationship between plaintiff and defendant, in which the bipolarity of the dispute forms the heart of the tort system\u27s aspiration for corrective justice. Tort law\u27s structural core, writes Jules Coleman, for example, is represented by case-by-case adjudication in which particular victims seek redress from particular defendants, each of whom must make good her \u27own\u27 victim\u27s compensable losses. Underlying these resurgent aspirations to individuation in the law of torts is, among other things, a common set of assumptions about the character of our historic tradition, as Justice Souter noted in Ortiz. At conference after conference, in article after article, that tradition is said to be grounded in a purportedly long- standing American commitment to individualized justice. To be sure, sophisticated observers of the legal system understand that the overwhelming majority of cases settle long before an adjudication ever takes place. Yet the literature on tort settlements -inspired by Mnookin and Kornhauser\u27s seminal article in the field of domestic relations adopts an individualized approach to thinking about bargaining in the shadow of the law. Settlement theorists have shown the deep significance of repeat-play agents in non-zero-sum fields like commercial litigation and negotiations among commercial comments on earlier drafts. Chris Brummer, Camden Hutchison, and Megan Renfrew provided excellent research assistance

The Metaphysics of Mind and the Practical Science of the Law

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends? After the Revolution, according to Blumenthal’s account, American doctors and jurists turned to a sunny, Scottish Enlightenment theory of moral responsibility. In place of the tortured moral gymnastics of an older generation of Calvinist-influenced thinkers, men like Benjamin Rush and James Wilson adopted the Scots’ idea of an innate moral faculty — a moral sensibility with which to distinguish right from wrong. The dilemma of responsibility seemed to have been solved. Human beings possessed the equipment with which to determine their fate, and if a person chose to pursue a morally wrong path, legal liability was her just desert

Contingency, Immanence, and Inevitability in the Law of Accidents

For well over a century now, the law of accidents has offered one of the great testing grounds for theories of legal history. This article draws out three competing theories of history, and in particular of legal history, embedded in narratives of accident law\u27s development. The first is immanence; the second is contingency; the third is inevitability. The immanence idea is that there is a deep inner logic to the development of the common law of torts. Contingency narratives, by contrast, tell the story of accident law\u27s development as being accidental: untethered to any deep logic or transhistorical coherence. Finally, inevitability narratives contend that tort and accident law are driven inexorably in one direction or another, not by forces that are immanent or instinct in ton doctrine, but by institutions and economic imperatives that impose strong constraints on the development of the law. The article elaborates further on these three themes, highlights their significance, and shows some of the ways they have animated (consciously or otherwise) important work in the literatures of law and history. Along the way, the article notes the deep tensions between immanence narratives and contingency narratives

The Long History of State Constitutions and American Tort Law

In the modern tort reform movement that dates to the mid-1970s, courts have struck down a number of reform statutes as unconstitutional under state constitutions. Commentators on all sides have treated these decisions as a new phenomenon in American law. In fact, American tort law has developed for over a century in the shadow of state (and occasionally federal) constitutional law. Beginning in the late nineteenth-century, state tort reform legislation came under sustained constitutional critique. The legislation at issue included employers\u27 liability laws that expanded liability for work accidents; spark fire statutes that made railroads liable for fires caused by engine sparks; stock statutes that made railroads liable for cattle killed on the tracks; wrongful death statutes that capped the damages available in death cases; and workmen\u27s compensation statutes. Late nineteenth and early twentieth-century state courts developed a small number of outer bounds on the legislative power to alter the rules of tort law. In many relatively uncontroversial cases, courts enforced specific and express constitutional rules to strike down statutes such as those that capped wrongful death damages despite a constitutional provision barring such caps. In another well-established line of cases, courts limited legislatures\u27 authority to allocate accident costs to parties with no causal connection to the accident in question. Such legislative allocations of accident costs without causation amounted to an illegitimate legislative taking. But on those occasions in which courts reached outside these limited rationales to strike down legislative changes in the common law of torts, courts caused political uproar and helped to bring on themselves the great Progressive Era court crisis. In particular, constitutional interventions to block the enactment of workmen\u27s compensation statutes at the opening of the twentieth-century produced political attacks on the legitimacy of judicial review that nearly stripped state courts of their power to review the constitutionality of legislation. The long history of the American constitutional law of torts is a cautionary tale for all involved. Supporters of modern tort reform efforts have little occasion for seeing unprecedented threats to basic constitutional principles like separation of powers and popular sovereignty. But those who would use state constitutional litigation to ward off legislated tort reform should be wary, too. Under the guise of judicial review, state courts have all too often used state constitutional provisions to interfere with experiments in public policy that over time have come to be widely respected

1940: Abilene Christian College Bible Lectures - Full Text

Delivered in the Auditorium of Abilene Christian College, February, 1940, Abilene, Texas. Published April, 1940 PRICE, $1.00 FIRM FOUNDATION PUBLISHING HOUSE Austin, Texas