TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, January 22, 2009

The Prosser Notebook: Classroom as Biography and Intellectual History

A draft of my latest article, The Prosser Notebook:  Classroom as Biography and Intellectual History, is available on SSRN.

Some of you may recall my series of posts--Post 1, Post 2, Post 3, Post 4, Post 5, Post 6--on the notebook which ran in November and December of 2007.  I hope to make the contents of the notebook itself available; William Benemann, the archivist at Berkeley Law, is working to set up a web page that connects my article to the contents of the notebook.

In the article, I use the notebook to present new details regarding several of Prosser's seminal accomplishments, such as his contribution to strict products liability.  I also use the notebook to demonstrate Prosser's realism in the classroom and connection to the compensation and deterrence rationales.

I appreciate the comments I have received from many of you on this project, and also the input I received at a colloquium at Rutgers-Camden last fall.  I welcome any further comments on the piece.

Here is the abstract:

When a former student offered to let me see his grandfather's Torts notebook, I was intrigued. The 70-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938-39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.

Because Prosser's papers likely have been destroyed, Merrifield's notebook offers a unique "behind the scenes" look at Prosser during a very significant period in his professional development. During 1938-39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser's article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser's place in the intellectual history of twentieth century legal theory. Prosser's 1938-39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser's realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law's most influential thinkers.

This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser's seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.


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Professor Robinette, I just had the opportunity to read your article. I congratulate you on producing such an accessible piece of scholarly work. As a first year law student currently studying from Prosser's textbook it was a great way to go beyond seeing the author as just his book and words to the evolving great he was.

Posted by: Charley Gee | Jan 30, 2009 8:57:08 PM

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