TortsProf Blog

Robinette on Prosser

I have posted to SSRN Scholars of Tort Law:  Professor William Lloyd Prosser (1898-1972).  The abstract provides:

This chapter, presented at Oxford at the “Scholars of Tort Law” conference, is concerned with William Prosser, the most important U.S. tort scholar of the twentieth century. Prosser exerted considerable influence on the development of several specific tort doctrines, notably strict products liability, privacy, and intentional infliction of emotional distress. Instead of his well-known contributions to these discrete torts, this chapter focuses more broadly on Prosser’s overall effects, particularly regarding the paramount tort of negligence. Prosser attempted to adjust negligence to two Realist challenges: Realists’ belief in the public nature of seemingly private disputes and the undermining of certainty caused by emphasising the facts of each case. To the first challenge, Prosser reconceptualised the elements of negligence as involving public policy choices. To the second, Prosser attempted to present a negligence formula that was both flexible and predictable. Prosser succeeded in presenting a more flexible negligence formula incorporating public policy factors, but failed in enhancing predictability, with far-reaching consequences for tort law as a compensatory mechanism.

Nolan on Winfield

Donal Nolan has posted to SSRN Scholars of Tort Law:  Professor Sir Percy Winfield (1878-1953).  The piece comes from a conference at Oxford in 2018 and published as a book last year; the abstract provides:

This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.

Davis Named Sole Finalist for UK Deanship

TortsProf Mary Davis has been named the sole finalist for the deanship at the University of Kentucky.  Coverage here.  Congratulations to Mary!

Pierre Widmer (1938-2020)

I am sad to announce the passing of Pierre Widmer, a Swiss expert in tort and comparative law and a founding member of the European Group on Tort Law.  He is remembered as a brilliant academic and beloved friend.  The EGTL notice is here.

RIP, Alan Calnan

I am sad to announce that Al Calnan, the longtime Southwestern Law School torts professor, passed away on April 20.  His passing was unrelated to COVID-19.  Al wrote in tort theory and was known as a dynamic teacher.  A letter to Southwestern alumni is here.  The Southwestern Law Review is dedicating its next issue to Al and Francis McGovern, both of whom spoke at a symposium at Southwestern in February and both of whom have since passed away.

A Tribute to Francis McGovern

from Duke Law is here.

Francis McGovern (1945-2020)

Brian Leiter is reporting that Francis McGovern, the longtime Duke faculty member and class-actions expert, has passed away.  He worked until the end; I was with him at a conference less than two weeks ago.

Anita Bernstein's "The Common Law Inside the Female Body" Discussed in Online Symposium at Northwestern Law Review

From the  Faculty Lounge:

The Northwestern University Law Review Online has published a symposium issue devoted to Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press 2019), including a response by Professor Bernstein.  Here is the publisher's description of the book:

In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.

Here are the essays in the symposium line-up:

Bridget J. Crawford, The Common Law as Silver Slippers
David S. Cohen, The Promise and Peril of a Common Law Right to Abortion
Joanna L. Grossman, Women are (Allegedly) People, Too
Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle
Margaret Chon, Intellectual Property Infringement and the Right to Say No
Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law
Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body
Anita Bernstein, Negative Liberty Meets Positive Social Change

Bernstein will receive the William L. Prosser Award at the AALS Annual Meeting in January.

Oscar Gray's Memorial Service

The service was held on Tuesday, December 10 at the University of Maryland School of Law.  Speakers included Judge Calabresi and Don Gifford.  Video is here.

AALS Torts Section Newsletter

...is here:  Download AALS Tort Section Newsletter November 2019

Memorial Service for Oscar Gray

A memorial event for the late Oscar S. Gray, the Jacob A. France Professor of Torts Emeritus, will be hosted by the University of Maryland Carey School of Law on Tuesday, December 10, at 2 p.m.  If you are able to attend, please RSVP at the following link by December 3^rd  https://oscargraymemorial.eventbrite.com

Oscar S. Gray (1926-2019)

Sadly, we must share the news that our friend and colleague, Oscar S. Gray, passed away today (October 3) in New York City.  Oscar, the Jacob A. France Professor Emeritus of Torts at the University of Maryland Carey School of Law, was one of the nation’s preeminent tort scholars from the 1970s until the time of his death. He published the second and third editions of the definitive six-volume treatise on tort law, Harper, James and Gray on Torts. He also was a co-editor of the influential torts casebook, Cases and Materials on Torts, along with Harry Shulman, Fleming James, Jr., and Don Gifford. During the mid-1990s, he served as chair of the AALS Section on Tort and Compensation Systems, and in 2010, he received the William L. Prosser Award for lifetime service from the section.

Oscar, a native of Maryland, attended Yale College from which he graduated Phi Beta Kappa. He decided to attend Yale Law School because, as he said in a 2011 interview, “law [is] a mechanism for bringing about social change, and … a way—perhaps the most striking way—of fighting for the righting of wrongs.” There he received, from Harry Shulman and Fleming James, Jr., what he described as “the best introduction to Torts I could have hoped for.” He also worked as a research assistant with Fowler Harper.

In the early 1950s during the anti-Communist hysteria of the McCarthy era, Professor Gray served as an attorney-adviser in the Legal Adviser's Office of the U.S. Department of State.   Both in this role and when he applied for admission to the Maryland Bar, he was asked, but refused as a matter of principle, questions about his political beliefs or the people whom he knew. From 1957 until 1971, he became a vice president and director of a start-up company in the nuclear materials field. He later served the government as special counsel to the President's Task Force on Communications Policy and as acting director of the Office of Environmental Impact for the U.S. Department of Transportation where, as he later described it, he “had a dandy time trying to prevent roads from doing unnecessary environmental harm.”

As a result of this work, in the late 1960s, Oscar received offers to teach the newly developing subject, Environmental Law, at Georgetown and Catholic. While doing so, he assembled a casebook on environmental law because there were no commercial offerings in the field.  In 1970, Georgetown Law School offered him a full-time faculty position teaching Torts. Oscar’s first step was to visit his own Torts teacher, Fleming James, at Yale to seek his suggestions regarding teaching torts. At the end of their encounter, Professor James asked Oscar if he was willing to coedit a new edition of the Shulman and James tort casebook and Oscar enthusiastically accepted the offer. A year or so later, Oscar joined James as a coeditor of the torts treatise. When asked in the 2011 interview what he regarded as his most important professional accomplishment, Oscar answered that it was “keeping alive the voices of Shulman and James, and Harper, so that they can continue to speak to new generations of students and scholars.” Oscar was extremely active in the activities of the American Law Institute and its drafting of the earlier parts of the Restatement (Third) of Torts.

In 1971, Oscar joined the faculty at the University of Maryland School of Law where he actively taught until 1996. To his colleagues, he was a steadfast figure of uncompromising integrity and commitment to scholarly excellence and precision in the use of language.

In 2018, Oscar celebrated fifty years of marriage with Dr. Sheila Hafter Gray, a leader in the psychoanalytic education and accreditation community. She survives him.

Despite his demanding scholarly agenda, Oscar was a huge fan of baseball and his Baltimore Orioles, through good times and bad. For decades, he “scored” each baseball game he attended with pencil and paper. He and Sheila also enjoyed chamber music and opera. Finally, Oscar was a serious wine collector.

Oscar Gray’s life will be celebrated at the University of Maryland Carey School of Law at a date and time to be announced later.

--Don Gifford and Chris Robinette

Anita Bernstein is the 2020 Prosser Award Honoree

 

Congratulations to Anita Bernstein, who has been selected the 2020 William L. Prosser Award honoree!  Anita is the Anita and Stuart Subotnick Professor of Law at Brooklyn Law School.  Her biography:

Professor Bernstein is a nationally recognized authority on tort law and feminist jurisprudence, as well as professional responsibility and products liability. Her awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems. 

 

Her writings have appeared in dozens of law reviews, including the principal ones of Harvard, Yale, Columbia, California, Michigan, Cornell, Duke, Texas, and Vanderbilt. Her books address torts, products liability, and the law of marriage. Professor Bernstein’s wide-ranging interests extend to microfinance, diversity as a rationale for affirmative action, and comparative and international law. Her scholarship has been cited in decisional law by federal courts (both trial and appellate) and the supreme courts of Pennsylvania and Texas. She has also authored a series on legal malpractice in the New York Law Journal.

 
Prior to joining Brooklyn Law School, Professor Bernstein was the Sam Nunn Professor of Law at Emory University School of Law, the Wallace Stevens Professor of Law at New York Law School and Norman & Edna Freehling Scholar and Professor of Law at Chicago-Kent College of Law. She also served as a visiting professor at Michigan Law School, Cornell Law School, and the University of Iowa College of Law, where she was the Mason Ladd Distinguished Visiting Professor of Law. Before her academic career, she practiced with Debevoise & Plimpton and was a law clerk to Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York.

Goudkamp & Nolan on The Story of Tort Scholarship

James Goudkamp and Donal Nolan have posted to SSRN Pioneers, Consolidators and Iconoclasts:  The Story of Tort Scholarship, the introduction to Scholars of Tort Law.  The abstract provides:

Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.

Torts Professor Listserv

For several years we have been without a torts professor listserv in the United States.  Thanks to Gus Hurwitz at Nebraska, that is no longer the case. 

You can either subscribe via the web interface at https://listserv.unl.edu/signup-anon (the list name is tortsprof), or by sending an email to listserv@listserv.unl.edu with an empty subject line and a body that contains nothing but "subscribe tortsprof" (including no signature).

Hiring at the University of British Columbia

The Peter A. Allard School of Law at UBC is in the process of hiring several Assistant Professors to begin in 2020-2021.  Torts is an area of particular interest.  The deadline to apply is September 10, and the link to information is here:  http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/images/homepage/assistant_professor_job_posting.pdf

They are also hiring Full or Associate Professors (any fields) and recruiting to nominate a Canada Research Chair (Tier 2) in Health Law, Law and Technology, or Legal Ethics.  A link listing UBC's current academic employment opportunities is here: http://www.allard.ubc.ca/about-us/careers-allard-school-law  

John Gardner (1965-2019)

Another sad death to report.  John Gardner, Senior Research Fellow at All Souls College at Oxford, has passed away from cancer at the age of 54.  I met him only once.  He was interesting, interested, charming, and kind.  The Oxford obituary is here.

James A. Henderson Jr. (1938-2019)

Cornell Law has now posted a notice for Jim Henderson.

Jim Henderson, R.I.P.

I am sorry to report that James A. Henderson Jr., the Frank B. Ingersoll Professor of Law, Emeritus at Cornell Law School, has passed away.  His biography at Cornell's website is here.  When an obituary is available I will post that as well.

European Tort Law

Congratulations to Mike Green on his seventeen-year tenure as the U.S. representative to the European Group on Tort Law.  Mike took emeritus status last week; he was both respected and loved by members of the Group.  His involvement began in 2002, in the intense period prior to the Group's 2005 publication of the Principles of European Tort Law.

Last week, for the first time, I attended the Annual Conference on European Tort Law, sponsored by the European Centre on Tort and Insurance Law and the Austrian Academy of Sciences.  For those of you in the U.S. interested in comparative law, I highly recommend it.  The conference covers the highlights of the previous year in tort law for over 20 European countries in 8-minute country reports.  I was dubious that academics could be restricted to speaking for 8 minutes, but the conference is run like a well-oiled machine.  Another wonderful feature of the conference is the atmosphere.  Speakers and attendees are serious about the material, and do not hesitate to debate issues.  There is, however, a remarkable sense of good will present, evident in the custom of attending Heurigen on Friday night.  Heurigen, which translates as something like "first wine," is when the speakers and attendees go to a traditional Austrian restaurant and enjoy dinner, wine, and even singing together.  The opening lecture this year was delivered by Mark Lunney, who discussed Australia as an important point of comparative common law.  The closing lecture on law and economics was delivered by Mark Geistfeld.  Do consider attending next year.