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 Based on a detailed examination of the published and unpublished writings by and about Holmes, Rosenberg essentially argues that if you have thought of Holmes and tort law since 1950, you have been wrong.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.
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