Thursday, November 29, 2007
As I noted in an earlier post (with a follow-up here), one of my former students loaned me his grandfather's Torts notebook. His grandfather, Leroy S. Merrifield (who went on to be a Torts professor himself), was a first-year law student at the University of Minnesota in 1938-39. His Torts professor was William Prosser.
In this time period, Prosser was writing Prosser on Torts, which would first appear three years later in 1941. The notebook makes it clear that Prosser was thinking quite a bit about hornbooks at that point. Merrifield's notes from the first day of class include an analysis of existing hornbooks--both English and American (with the English listed first!). Merrifield recorded the following:
Pollock-13th Ed.-English law; Salmond-8th Ed.-English law-best text; Clerk & Lindsell-8th Ed.-English law
Cooley-4th Ed.-not good but best; Chapin (1913)-"hornbook" accurate but incomplete; Harper-1933 disciple of Bohlen (casebook author) theoretical-presents one view-most useful.
Prosser had clearly considered these books very carefully. He described them on the first day of his Torts class. He had ranked them--Salmond was the best English text, Cooley was the best American text, Harper was the "most useful." And, importantly, he had found them lacking. Even the best American text was "not good." Prosser saw a need in the market, and he was planning to fill it.
In a related matter, it appears that Prosser, in 1938-39, was using as a text Francis Bohlen's Cases on the Law of Torts (3d ed. 1930). The reference to Bohlen as the "casebook author," combined with the page numbers for specific cases, provided the answer.