Vol. 6, No. 5 (May, 1996) pp. 84-87
THE HIDDEN HOLMES: HIS THEORY OF TORTS IN HISTORY by David
Rosenberg. Cambridge: Harvard University Press. 1995. 280 pp.
Cloth $45.00
Reviewed by Paul E. Parker, Division of Social Science, Truman
State University.
Harvard law professor David Rosenberg has undertaken a careful
study of Oliver Wendell Holmes's thought on tort law. Based on a
detailed examination of the published and unpublished writings by
and about Holmes, Rosenberg essentially argues that if you have
thought of Holmes and tort law since 1950, you have been wrong.
The guilty parties read like a who's who of modern jurisprudence
and torts: Rabin, Shavell, Posner, White, Epstein, Horwitz, and
Friedman. Oops, I forgot Calabresi. "Even the most
penetrating and comprehensive analysis," by Patrick Kelley,
is marred by the author's "failure to understand the
bifurcated nature of Holmes's theory of torts." (162, 271).
The centerpiece of the text is a challenge to what Rosenberg
terms the "Negligence Dogma Thesis" -- "that
Holmes was a diehard opponent of all forms of strict liability
and dogmatic advocate of making negligence the universal rule in
tort." (8) The distinction between the two rules is crucial.
Strict liability rules are more generous to plaintiffs, who
typically must show only that they were harmed by the defendant's
conduct. Under negligence rules, the additional criterion of
unreasonable conduct by the defendant is required for a plaintiff
to collect damages. Rosenberg is out to rescue Holmes from the
charge of the negligence dogma thesis, and the related claim that
to favor negligence is to subsidize business, or the industrial
subsidy thesis.
He does so by first addressing Holmes's jurisprudence. Chapter
one establishes Holmes's rejection of the legal formalism of
Langdell and Austin due to its disregard for the role of
experience in law making, and for its masking of the legislative
function of courts. "The life of the law has not been logic:
it has been experience" (THE COMMON LAW, 5) and many more
quotes to that effect make this case. This commitment to the
empirical methodology of modern science is central to Holmes's
rejection of formalism. It is also pivotal in Holmes's
jurisprudence and his efforts to systematize torts. Drawing
mainly on THE THEORY OF TORTS and THE COMMON LAW in chapters
three through five, Rosenberg aims to demonstrate Holmes's new
theory of torts based on foresight. To Holmes, a theory of torts
grounded in foresight better accounted for what courts did and
should do than did competing theories such as causation (which
can hold one accountable regardless of intent or caution) or
moral blameworthiness.
Rosenberg's final step is to show that Holmes's foresight theory
accommodated foresight based-strict liability, which Rosenberg
distinguishes from the more commonly conceived cause-based strict
liability. Having shown Holmes can ACCOMMODATE (emphasis mine) a
variant of strict liability, Rosenberg has refuted the
negligence-dogma thesis and laid the ground work for attacking
the industrial subsidy thesis. This and the attacks on modern
legal
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scholarship are subjects of chapters five and six.
How could the present understanding of Holmes -- especially given
that Holmes's contemporaries understood him (147-54)-- be so
wrong? Rosenberg's answer is shoddy research, marked by
"elementary mistakes" and "ideological
presuppositions." (164) The misunderstandings began in 1950
with Fleming James's suggestion that Holmes opposed strict
liability on subsidy grounds (161). The real culprit however is
Mark DeWolfe Howe, who in 1963 published JUSTICE OLIVER WENDELL
HOLMES: THE PROVING YEARS, 1870-1882, which "provided a
model of anachronistic disregard for important elements in the
contemporary context bearing upon Holmes's treatment of strict
liability" (167). Compounding these errors of scholarship,
"As a member of the Harvard faculty, [Howe] ...was uniquely
situated to influence elite academic peers like Gilmore and
Friedman, and future scholars such as Horwitz, Posner, Gordon and
White." (166) Whether it was Howe's position at Harvard, or
his extensive writings on Holmes, a generation of
secondary-source material-relying scholars later, the negligence
dogma thesis was common wisdom. Throughout these final pages, one
can almost hear Rosenberg repeating Holmes's statement in BUCK V.
BELL that "Three generations of imbeciles is enough."
(207)
Two points bear comment. First, central to Holmes's accommodation
of strict liability is the important issue of terminology. Holmes
spoke for negligence and against strict liability. But "
negligence' in Holmes's time also had a premodern meaning as the
name given to the entire category of foresight-based
unintentional torts'" (177, note 21). Furthermore, Holmes
did not favor cause-based strict liability, but merely
accommodated foresight-based strict liability (i.e., holding me
accountable for engaging in an activity from which harm might
result regardless of my level of care, such as blasting. Unlike
cause-based strict liability, I can foresee my activity may
result in harm. Unlike negligence, even if I take reasonable
care, I might still injure another). Between the narrowing of
negligence to today's meaning of unreasonable conduct, and the
broadening of strict liability to encompass cause-based and
foresight-based claims, one can readily see how a late 19th
century statement by Holmes favoring negligence can be read today
to mean Holmes repudiated strict liability. Yes, Howe missed or
ignored this. As a generalist, I find Rosenberg's exegesis to be
a helpful corrective, and I am duly reminded of the need to
consider context of historical works, but I do not find this to
be a generalizable indictment of legal scholarship.
Secondly, surely Holmes did favor negligence rules to strict
liability. While Holmes's foresight theory can accommodate
foresight-based strict liability, this is far short of saying
Holmes favored strict liability. Indeed, Rosenberg devotes pages
140 -142 to a discussion of the policy limits of strict
liability. Here we are taken beyond Holmes's intellectual
accommodation of foresight-based strict liability to the policy
choices facing courts. Rosenberg claims the choices favored
negligence over strict liability, which "was not only
expensive and often futile, but generally unnecessary since
plaintiffs could spread their losses more cheaply and effectively
through
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first party accident insurance." (141; see also,
accompanying note 93)
Chastising the interpretations of contemporary legal scholars,
Rosenberg continues: "Certainly, instead of leaping to
specious ideological and materialist interpretations such as the
negligence-dogma and industrial-subsidy theses, those appraising
the (presumed) nineteenth century resistance to strict liability
and preference for lax negligence standards should take account
of social facts, particularly those which, like the lack of
liability insurance, delimited practical choices available to the
people at the time." (141)
The "people" with limited choices here seem to be
judges; Rosenberg does not make clear whether in fact other
"people" -- those most likely to be harmed, such as
laborers or consumers -- could or did avail themselves of first
party insurance or of alternative products or jobs, seemingly
important social facts given Holmes's empiricism. Nor is it clear
why markets for strict liability insurance could not have formed
in response to courts' adoption of strict liability rules (as
they did in the 20th century). Thus, while Holmes's theory of
torts can accommodate a variant of strict liability, Holmes
himself had good reasons for generally preferring negligence,
seems Rosenberg's defense -- a rather weak defense to the claim
that Holmes favored negligence rules.
While the "evidence amassed" (42) by Rosenberg to make
this case is impressive, it is also somewhat tedious; fully 100
pages of the book contain the text of his 998 footnotes, of which
nearly 40% are substantive. On this score, as well as with the
text's organization into detailed sections and subsections, the
book has the flavor of legal scholarship. Finally, while one may
appreciate the commitment to thoroughness that Rosenberg's
research demonstrates, the interpretations and conclusions are
not novel. Others have written law review articles recognizing
both that Holmes's favored a version of strict liability (Kelley,
1984), and challenging the subsidy thesis (e.g., Tushnet, 1977).
Despite the important corrective Rosenberg offers to Holmes's
thought on torts, the book is not likely to have wide appeal. For
readers uncritically attracted to the subsidy thesis, the
introduction and the last two chapters are useful. For students
of jurisprudence, Rosenberg's treatment of formalism and
antiformalism in chapters one and two are helpful. The general
claim that legal scholarship needs to be careful is of course one
that few would dispute, and which most would generalize to the
social sciences as well. Whether this case study is a strong
indictment of the state of legal scholarship is debatable. Holmes
on torts is dense reading. It is doubtful that nonspecialists
will want to wade through a dense secondary treatment of Holmes's
writings on torts for that payoff.
References:
BUCK V. BELL 274 U.S. 200 (1927).
Howe, Mark DeWolfe. 1963. JUSTICE OLIVER WENDELL HOLMES: THE
PROVING YEARS, 1870-1882. Cambridge: Belknap Press.
Kelley, Patrick. 1984. "A Critical Analysis of Holmes's
Theory of Torts."
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WASHINGTON UNIVERSITY LAW QUARTERLY 61:681- 744.
Tushnet, Mark. 1977. "Perspectives on the Development of
American Law: A Critical Review of Friedman's A HISTORY OF
AMERICAN LAW." WISCONSIN LAW REVIEW 1977:81-109
Copyright 1996