Foster, Henry H., Jr.

English

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Louisiana Law ReviewVolume 18 | Number 1The Work of the Louisiana Supreme Court for the1956-1957 TermDecember 1957CASES ON THE LAW OF TORTS, by LeonGreen, Wex S. Malone, Willard H. Pedrick, andJames A. Rahl, West Publishing Co., St. Paul. Pp.xxvi, 855.Henry H. Foster Jr.This Book Review is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationHenry H. Foster Jr., CASES ON THE LAW OF TORTS, by Leon Green, Wex S. Malone, Willard H. Pedrick, and James A. Rahl, WestPublishing Co., St. Paul. Pp. xxvi, 855., 18 La. L. Rev. (1957)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss1/49LOUISIANA LAW REVIEWthey can be made adds rather than detracts to the value of thework as a teaching aid. Substantially everything of importancein administrative law is touched upon after all and an analysiscompletely satisfactory to every devotee is hardly attainable.The format is conventional and good; some, to be sure, wouldprefer the paging to be given its usual place and the sectionizingrelegated to lesser dominance. Likewise, reference to pages inthe index and case table, rather than to sections, though morelaborious, would have given readier access to the author's an-alysis and documentation. However, this deficiency is in partcompensated for by a detailed table of contents referenced tosections and pages.Melvin G. Dakin*CASES ON THE LAW OF TORTS, by Leon Green, Wex S. Malone,Willard H. Pedrick, and James A. Rahl, West Publishing Co.,St. Paul. Pp. xxvi, 855.In 1931, Dean Leon Green published his Judicial Process inTort Cases, and in 1939 his second edition appeared. If imita-tion is the sincerest form of flattery, Dean Green was quitechurlish to prior compilers of torts materials. His materials ex-pressed ingenuity and did not follow what had evolved to be theclassical structure of torts casebooks. Adopting what has beencalled a functional perspective and viewing the subject matterfrom the eclectic approach of sociological jurisprudence, DeanGreen pointed to the work environment of rule and doctrine. Itwas a unique collection of materials.This year, in collaboration with able assistants, an even finerif less novel collection of tort materials has appeared under thenew title Cases on the Law of Torts. The current edition, al-though it features a sparkling collection of recent cases and newtext, follows the same outline and general organization of theearlier editions except for the addition of new materials on "in-juries resulting in death" and "conversion" and the eliminationof materials on defamation and privacy which have been incor-porated into a separate volume to be used in a separate coursein relational interests. But it is not the details but the structureof these materials and their impact upon students of torts whichwarrants our examination.[Vol. XVIIIBOOK REVIEWSSir Henry Maine thought that the evolution of law might betraced from the stage of primitive law, through a period of strictlaw, an era of equity and natural law, to a "maturity of law,"up to a period of "socialization of law." If by "socialization"we mean the perception that law is but one means of social con-trol, a means rather than an end, with the function of furtheringthe values of our time and place, and if by that term we meanplacing law in context and observing it pragmatically, then itmay be said that this casebook reflects the jurisprudence of ourtimes and is a product of the age of "socialization." Dean Green,Wex Malone, Willard Pedrick, and James Rahl - these fourtortsmen of the metamorphosis - have gone beyond analysisand synthesis and have illumed the subject matter so that wemay see and test the social implications of rule and doctrine.If we examine their contribution from the standpoint of themethods of jurisprudence, we would classify it as an exercise ofthe method of sociological jurisprudence. Although in this re-spect Cases on the Law of Torts is not a unique collection ofmaterials, in either law or torts, and by comparison it becomesa matter of degree, nonetheless both the original edition and thisup-to-date revision are remarkable for their emphasis upon theenvironmental setting for legal concepts. There are constantreminders of context. The introduction explains that the ma-terials are arranged upon the basis of Pound's theory of inter-ests. Note material, statistical data, economic and social factors,particularly in connection with the traffic and transportationchapter, keeps one eye of the student glued to policy and conse-quences while the other is free to roam through rules and legaldoctrine. This means that rule and doctrine are placed in anexus which differs from that of the usual torts casebook. Factsand consequences, if not truth and consequences, are focal pointsfor study. Freshmen still needs must learn to split the hairs ofdoctrine and dogma, distinguish and analogize. But in additionto the usual microscope, a telescope is handed them. They neednot grub in the ground in search of stars. The context or settingfor living law, the consequences, and the interplay of facts andprinciples, are part of the view. Experience as well as logicbecomes the life of tort law.I suppose what we are talking about is the personality of abook. Dean Green's original volume was one of the first de-partures from a predominantly analytical approach to law.1957]LOUISIANA LAW REVIEWShulman and James later followed the path blazed by Green andin their own way utilized sociological material. In other areasof law, so too did McDougal and Haber,' Michael and Wechsler,2Fowler Harper,8 and Max Rheinstein,4 to mention but a few out-standing examples of a sociological approach. Even the ma-terials which might arbitrarily be classified as predominantlyanalytical, such as Seavey and Keeton, 5 and Smith and Prosser,6have not overlooked sociological material, although the person-ality of these fine books remains analytical rather than sociolog-ical, as their impact is that of rule and doctrine rather thansocial values, principles rather than the roots of principles.Perhaps a description of the sequence of materials mayillustrate the nuances of differences. As in Green's original edi-tion, the new volume commences in Chapter I with note ma-terial which pictures the governmental setting of law and abrief statement of Pound's Theory of Interests. In Chapter IIthe sequence is from assault and battery cases, verbal assaultsor insults, wire-tapping, various other intentional torts down toeviction and scrambled possession. Commencing with Section 5,"Use of Firearms," the functional perspective takes hold."Sports and Practical Jokes," "Conduct of Children and InsanePersons," "Fright and Nervous Shock," are section headings.Chapter III covers the "Care and Treatment of Ill, Disabled andIrresponsible Persons," Chapter IV, "Occupancy, Ownership, De-velopment of Land," with sub-sections on "Fire," "Water," and"Various Activities." Chapter V deals with "Public ServiceCompanies," Chapter VI with "Governmental Torts," ChapterVII with "Builders, Contractors, Workmen," Chapter VIII with"Manufacturers, Dealers," and Chapter IX with "Traffic andTransportation."This sequence and grouping of materials is a factual ratherthan a doctrinal one. Obviously, it is at the expense of somesymmetry. and sacrifices a logical denouement of principles. Onecatches glimpses of doctrine and principle but chameleon-likethey change color or contour with a change of setting. Thus afreshman student is denied the comfort or the illusion of fixed1. PROPITY, WEALTH, LAND: ALLOCATION, PLANNINO AND DEVELOPMENT(1948).2. CRIMINAL LAW AND ITS ADMINISTRATION (1940).3. PROBLEMS OF THE FAMILY (1952).4. CASES ON DECEDENT'S ESTATES (1947).5. CASES AND MATERIALS ON THE LAW OF TORTS (1957).6. CASES-AND MATERIALS ON TORTS (1952).[Vol. XVII1BOOK REVIEWSprinciples and the law becomes for him a seamless web. In lieuof dogma he gets the lawyer's feel for facts and what lies behinddoctrine. But one may ask, is there any more certainty in apriori reasoning from facts than from doctrine? Facts may be aselusive as concepts. It is a commonplace that lawyers are per-haps more shocked by the version of facts recounted in appellatedecisions than they are by the court's selection of principles.Selectivity is exercised as to both. Just as there is a wide rangeof choice between precedents and principles, there is a similarlatitude as to operative facts. Pragmatically, both facts andprinciples are or may be stimuli for decision, or tools for ration-alization, and a choice or selection between competing facts andprinciples depends upon a diversity of social and personal factorswhich, despite Professor Oliphant's invitation 7 have never beenfused into a science of law.It may be true that the late Jerome Frank's emphasis uponthe fact-finding function and Green's division of labor betweenjudge and jury is realism in a jurisprudential sense. It may betrue that factual setting, or functional grouping, is the lawyer'sapproach to law. But realistically, is an orientation towards thefact content merely another mechanical rabbit, just as elusivea quarry as rule and doctrine? It would seem so. Hence, re-gardless of orientation, to be truly functional or realistic, legalmaterials must stress the jurisprudential problem of what de-termines selection and choice. On this score, Green and his co-authors have done very well. The economic and sociologicalchanges which require mutation and modification of old theoriesare delineated or become apparent upon reflection, with or with-out prompting from the instructor. The note on Horse andBuggy Traffic in Chapter IX is an example of this, as are thematerials on accident rates, juvenile automobile accident rates,"traffic cases and the law - what next ?," and a note on Englishlegislation. Note material as well as arrangement of cases pro-vokes contemplation of basic social values and the consequencesof decisions.It is interesting to note how far we - or rather Dean Greenand associates - have come. Not too long ago, there was vehe-ment argument over whether analytically one could properly7."[N]ot the judge's opinion, but which way they decide cases, will be thedominant subject-matter of any truly scientific study of law." Oliphant, A Returnto Stare Deojas, 6 Am. L. SCHOOL REv. 215 (1928), reprinted in COHEN & COHEN,READINGS ON JURISPRUDENCE AND LEGAL PHILOSOPHY 566, 569 (1951).19571. 229LOUISIANA LAW REVIEWconceive of "torts" as a distinct subject. It was argued thatthere were no unifying principles or universals to weld togethertorts law in the sense that there was a law of contracts or realproperty. Analytical teachers came to the rescue, fashioned orperceived postulates, and the subject achieved the dignity ofidentity, albeit it was jerry built from what was left over fromcontracts and criminal law. The analysts and logicians madetheir contribution in systematizing the subject, in classification.Concentration upon fusion of the subject into an integratedwhole, inevitably, led to some neglect in inter-relating torts tothe larger scene. To complete the picture, to avoid a confusionof means with ends, it became essential that the subject be re-lated to the values of our time and place so that its sociologicalfunction might be observed.However, a functional approach with its emphasis upon factsmay come perilously close to another pitfall. That dangerouscondition near our traveled way is what we might term a "hard-ening of the categories" approach to tort law. One basic theoryor philosophy of tort law, typified by Salmond, is that any harmis damnum sine injuria unless the situation is one for whichcourts have traditionally accorded relief. The basic premise isthat "loss shall lie where it falls, unless some good purpose isserved by changing its incidence,"" and the corollary is that allsuch "good purposes" have been settled by past decisions.Precedents, specifically recovery in like or identical circum-stances, determine what is compensable. The opposite philosophyis that which may be called the dynamic or prima facie theoryof tort liability, that is, an injury is prima facie actionable un-less the defendant establishes justification or excuse (privilege),and its corollary is that bad motive plus harm equals tort. Ofcourse, there are areas in tort law where one or the other phil-osophy has bested the other, and the competition between theseapproaches becomes keen when courts are confronted with suchnew assertions of interests as privacy or unfair competition.The stagnant approach is a situational one - stressing factualresemblance rather than the implications of theory or doctrine.The dynamic approach stresses the ramifications and implica-8. SALMOND, LAW OF TORTS, C. 1 (6th ed. 1924), reprinted in COHEN & COHEN,READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 210, 213 (1951). See alsoGoodhart, The Foundations of Tortious Liability, 2 MOD. L. REv. 1 (1938).9. See Seavey, Bad Motive Plus Harm Equals a Tort, 26 .ST. JOHN'S L. REv.279 (1952) ; the basic analysis by Holmes in Vegelahn v. Gunter, 167 Mass. 92,44 N.E. 1077 (1896); and Winfield, The Foundation of Liability in Tort, 27COLUM. L. REV. 1 (1927).[Vol. XVIIIBOOK REVIEWStions of principle rather than fact similarity. Superficially, itwould seem that fact stress inhibits the free development of lawto the needs of the times.How does Cases on the Law of Torts avoid the pitfall? Thisreviewer feels that safe navigation is accomplished by the ma-terials marking both fact environment and principles and fol-lowing the beam of sociological purpose which illuminates both.From the lawyer's standpoint, there is a marked difference be-tween defending or suing a public utility on the one hand, andan ordinary citizen on the other. There is a difference betweendefending a doctor in a malpractice case or in a traffic case.Moreover, it is a difference worth noting. But for the differenceto be meaningful, we must go behind both fact situation anddoctrine to ascertain, if we can, why diverse patterns haveemerged. These materials, by organization and content, focusattention on that which lies behind judicial selectivity. One can-not read the excellent collection of malpractice cases, coveringover sixty pages of double columns, without getting a three wayfix on facts, principles, and purpose.This functional approach, which might be termed a horizontalor strata classification, results in a specification or individual-ization, a special adaptation of general principles as they areapplied or rejected in identifiable classes or patterns of cases.The grouping cuts across the vertical lines of intentional, neg-ligent, and strict liability torts. The result is much the sameas if a zoologist were to group flying, terrestrial, and swimminganimals into separate groups because he was specifically inter-ested in locomotion. In light of the purpose, such a classificationmakes sense and has utility. It is presumed that Dean Green'spurpose and specific interest is the basic problem in torts, alloca-tion of risk, or the question of who should bear the loss. If oneconcedes that this is the fundamental or basic question in tortlaw, then it makes sense to group cases according to where theloss has been customarily placed rather than according to doc-trine which gains or loses vitality according to the factual milieu,at least if inquiry is provoked as to why fact context is moreimportant than symmetry of doctrine.I suppose that it is poetic justice if not just to subject Caseson the Law of Torts to a functional test. How will these mate-rials serve as a teaching tool; what is their practical validity?In the hands of the co-authors, all true initiates of functional19571LOUISIANA LAW REVIEWclassification, able teachers all, these materials doubtlessly arehighly proficient. They have been trained to use the tool. Forthe neophyte, or one inured to a predominantly analytical anddoctrinal approach or emphasis, re-orientation is required orconfusion will ensue. The strands of doctrine placed in fact con-text may seem an unseemly fragmentation; synthesis may neveremerge. If there be a felt need for a systematic exposition ofdoctrine and principle, these materials may be found wanting.To some it may be disconcerting to catch fleeting and periodicglimpses of negligence, of such doctrines as res ipsa loquitur, andnegligence per se, before such matters are more fully developed.If a casebook is viewed as an analytical exposition of its subjectmatter, perhaps doctrines and principles should be sketched atleast in outline before specific applications are presented, orvariations of doctrine and principle should be accumulated injuxtaposition. However, pedagogical technique may functioninterstitially to supply such marrow as the occasion calls for andramifications of doctrine may be anticipated where necessary.In the hands of an experienced teacher of torts these materialsadmit of such supplemental denouement of doctrine as studentcomprehension seems to require while at the same time the im-portance of facts and values in the adjudicating process is high-lighted to an unprecedented extent.By their excellent choice of cases and appeal to Imaginationand pragmatism, the authors have fashioned a worthy successorto Dean Green's original volume. The law of torts long will beindebted to Dean Green for his perception and discernment inseeing the forces behind rule and concept and his emphasis uponbasic values. 10 Professor Malone, whose dissection of compara-tive negligence and causation have exposed the anatomy of doc-trine as the substance of policy," and the skilled help of Pro-fessors Pedrick and Rahl, have combined to revitalize DeanGreen's functional approach into a highly useful casebook which,in the hands of a skilled instructor, may impart a wider under-standing and insight into torts and the judicial process thanmany contemporary casebooks of less ambitious and more con-10. Dean Green's RATIONALE OF PROXIMATE CAUSE (1927), and JUDGE ANDJURY (1930) are minor classics and enriched tremendously the philosophy of tortliability.11. Professor Malone's Ruminations on Cause-in-Fact, 9 STAN. L. REv. 60(1956) ; Contributory Negligence and the Landowner Cases, 29 MINN. L. REV.61 (1945) ; and Comparative Negligence - Louisiana's Forgotten Heritage, 6 Lou-ISIANA LAW REVIEW 125 (1945) are splendid examples of an eclectic approach totort law.(Vol. XVIII1957] BOOK REVIEWSventional perspective. The faithful student and the faithfulreader will find that he never loses sight of the fact that law isbut a means to an end and that we live in an age of "socializa-tion of the law." It is a tragedy that some of our victims ofconceptualism and "mechanical jurisprudence"-whether on thebench or at the bar - who need it the most, probably will notget the perspective which would be theirs if they studied law atmid-Twentieth Century and had the good fortune to assimilatetheir torts from these materials. For in the final analysis whatdistinguishes this casebook from its fine competitors is its totalperspective and its illumination of context. Whether this isbiting off more than a freshman student can chew must be leftto the judgment of the individual instructor.12Henry H. Foster, Jr.*12. For a discussion of the application of jurispudential methods to teachingtorts, see Cowan, Jurisprudence in Teaching Torts, 9 J. LEGAL ED. 444 (1957).*Professor of Law, University of Pittsburgh.

CASES ON THE LAW OF TORTS, by Leon Green, Wex S. Malone, Willard H. Pedrick, and James A. Rahl, West Publishing Co., St. Paul. Pp. xxvi, 855.

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CASES ON THE LAW OF TORTS, by Leon Green, Wex S. Malone, Willard H. Pedrick, and James A. Rahl, West Publishing Co., St. Paul. Pp. xxvi, 855.

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