James, Fleming, Jr.

English

Yale Law School Legal Scholarship Repository

FOWLER VINCENT HARPER
FLEMING JAMES, JR.*
FOWLER VINCENT HAmzER' was one of the outstanding American scholars and
writers of this century in the field of torts. He taught torts throughout llis
law teaching career, which started in 1926 at the University of North Dakota,
During that first academic year Fowler wrote for the first volume of the Da-
kota Law Review two book reviews, two comments, and two leading articles.
These show the breadth and quality of his interests as well as his industry
and energy. The books he reviewed were Frankfurter's Case of Sacco and
Vanzetti,' and John B. Watson's Behaviorism2 with its implications for the
legal treatment of criminals. One comment dealt with the time from which
a will speaks 3 and the other with the state's recent Judicial Council Act,4 The
articles were entitled "Scientific Method in the Application of the Law"6 and
"Ethical Bases of the Law of Defamation."
Fowler's production during that first year gave an accurate forecast of what
he was to do throughout his career. In all his many writings he was greatly
concerned with the ethical values which he felt the law should serve, and
with evaluating its rules in terms of social policy. It is hard today to realize
how rare a thing this was among the law teachers and writers of that time,
Men like Pound and Bohlen stood out from their generation, and it was these
men who had great influence on Fowler's early development.
In 1933, when he was 36, Fowler published his Treatise on the Law of Torts
which, as I well remember, filled a great need for student, teacher, practitioner,
and judge. It was reviewed by most of the leading men in the field, generally
with favor. Bohlen called it "the most satisfactory statement of modern tort
law that exists, ' 7 and hailed the author's "extraordinary power of analysis."
Shulman said it was the "best available modern short statement of the doctrine
in the law of torts."9 Prosser thought it "much the best thing yet written on
the law of torts; and if we have many more such books, we shall improve the
law."'1 Carpenter found the important opening chapter "one of the finest
pieces of legal literature extant."'"
*Foster Professor of Law, Yale University. This memorial was originally delivered at
a memorial service for Professor Harper at the Law School.
1. Harper, Book Review, 1 DAx. L. Rrv. 148 (1927).
2. Harper, Book Review, 1 DAN. L. REv. 152 (1927).
3. Comment, 1 DAN. L. Rav. 83 (1927).
4. Comment, 1 DAK. L. REv. 43 (1927).
5. 1 DA. L. Rav. 110 (1927).
6. Id. at 73 (1927).
7. Bohlen, Book Review, 47 HAuv. L. Ray. 556 (1934).
8. Id. at 560.
9. Shulman, Book Review, 43 YALE L.J. 859, 860 (1934).
10. Prosser, Book Review, 19 MINN. L. Rav. 257, 259 (1935).
11. Carpenter, Book Review, 10 So. CAL. L. REv. 250, 251 (1937).
FOWLER VINCENT HARPER
The treatise was much influenced by the thinking of the men - and Fowler
himself came to be one of them - who produced the Torts Restatement. The
book, in turn, did a great deal to promote the wide acceptance which the Torts
Restatement has had by courts and torts teachers.
Many years later, after he had come to Yale, Fowler asked me to join with
him in writing .a more extensive treatise on torts,- and we have both been
gratified by the response to our joint product. Fowler also edited two editions
of Bohlen's Cases on Torts 13 and a two volume collection of Readings on
Torts.14 His articles in the field are many and valuable.
Fowler's-work was by no means confined to torts. He had great and long-
standing interest in the conflict of laws and wrote a good many leading articles
in that field. He was coeditor of two casebooks on conflict of laws.' After he
came to Yale, he also compiled and edited an imaginative set of materials on
family law.' 6
I have mentioned Fowler's interest in the ethical content of law. This was
by no means only an abstract and intellectual interest - rather it represented
deep feelings that were part of the core of the man. Fowler had great warmth
and a passionate attachment to the ethical values he cherished. Liberty and
justice were high on the list of these during all his professional life. When he
reviewed Cardozo's Paradoxes of Legal Science in 1929, he was troubled by
that great judge's willingness to have liberty "bend somewhat or modify" to
fit constitutional dogmas of property or even of liberty. Fowler wrote: "Is this
another intrusion of the 'higher law'? Are we to offer up a living conception
of liberty which social science is constructing out of the very experience of
human beings, a sacrifice to a static and uncompromising dogma?"' 7
Fowler's passion for liberty and justice was an intensely personal thing.
He was deeply concerned with the people who were affected by injustices and
denials of liberty. He had a genuine sympathy for people in trouble, and this
sympathy led him to take practical steps to help them, often at great cost to
himself in terms of time and effort. Few men I have known have been as
willing to carry out the uncomfortable and burdensome implications of their
ethical principles. I think perhaps he is the most truly altruistic and com-
passionate man I have ever known.
The combination in Fowler of lively and broad-gauged intellectual interests
and of warm and fine human qualities made him a great teacher of law. And
by this I mean far more than a good classroom teacher. His life and his
writings stand as the best sort of example of the use of law to attain moral ends.
12. HARPER & JAmEs, LAw or ToaRs (1956).
13. BOHLEN, CASES ON THE LAW o ToRs (4th ed. 1941) ; Id. (5th ed. 1953).
14. HARPER, READINGS n ToRs (1941).
15. HARPER & TAiNToR, CASES AND OTHER MATERIALs oN JuDicaL TECHrIQUES n.
Coxrcr or LAws (1937); HARPER, TAnTroR, CARNAHA & BRowN, Cor.xcr oF LAws:
CASES AM MATERAmLS (1950).
16. HARPER, PRoa.~xS oF THE FAmhy (1952).
17. Harper, Book Review, 8 Or. L. REv. 21, 213 (1929).
1965]
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Fowler Vincent Harper

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Fowler Vincent Harper

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