Conceptualizing Tort Law: The Continuous (and Continuing) Struggle
Today all tort lawyers, scholars, and teachers understand that there are three bases of liability in tort: intent, negligence, and strict liability. That is ordinarily how we think about tort liability, and how we organize tort law in our thinking. But that way of thinking actually does not capture, and has never captured, all of tort law. A quick look at any of the Restatements of torts, or at the leading treatises and casebooks, reveals that this tripartite division is only partly reflected in their organizational structure. Many torts typically are treated in piecemeal, atomistic fashion, as if they fall outside of this tripartite structure of organization altogether. In addition, very different matters are addressed under the three divisions. Something else, or something additional, is going on in tort law, but exactly what is not clear, and never becomes clear.
In fact, the untidy, fragmented organizational structure of contemporary tort law is the legacy of a lost history that not only helps to explain tort law’s puzzling organization, but also to reveal the underlying disordered character of tort law itself. This Article uncovers the ways in which the history and the very nature of tort liability have combined to defeat repeated efforts at coherent conceptualization of this body of law. We first examine the challenge that the treatise and casebook writers faced late in the 19th and early 20th centuries, as they attempted to organize and classify the different features of the new subject of tort law after the ancient, procedure-based “forms of action” and the writ system they accompanied were abolished along with the prohibition against party testimony. We then venture into the archives of the American Law Institute, in which the now-obscure evolution of the first Restatement of Torts in the 1920s is recorded, as that project first attempted, but then largely abandoned, an effort to develop a new, coherent organization of tort law in the first draft of the Restatement. That first draft revealed an incipient vision of tort law’s structure which appeared to be developing, but this vision sputtered and then disappeared, both from future drafts and from conventional histories of tort law. What ultimately took the place of that vision was the puzzling and fragmented organization of tort law that has come down to us today, all the way from that first Restatement. We then turn to the modern period, showing the ways in which the fragmented organization adopted by the first Restatement has persisted and been replicated, with treatises, casebooks, and both the second and third Restatements of torts largely accepting and adopting the organization of tort law that found its way into the first Restatement.