Giants of Torts

A living tradition:

In re Lead Paint Litigation, 191 N.J. 405, 450 (N.J. 2007)  Zazzali, C.J., dissenting

 In an ordered society, one purpose of the law, particularly the common law of torts, is to provide a corrective mechanism for injustice. ..See W. Page Keeton et. al., Prosser and Keeton on Torts  (5th ed.1984)  supra, at 15. Common law claims must keep step with the schemes of those who would unfairly profit at the expense of others. It is our responsibility to ensure that formalistic distinctions and outdated definitions do not thwart justice. Rather, we must mold the common law to the unanticipated injustices that inevitably arise as our society advances through time. Our duty is "[t]o sustain, to repair, to beautify this noble pile" that is the common law. 4 William Blackstone, Commentaries on the Law of England 436 (1765-69).

William Blackstone (1723 - 1780)  Commentaries on the Law of England (1765 - 1769) are a key historical document.  It is available HERE, courtesy of The Avalon Project and Yale Law School:

THE more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice; that is, by civil suit or action.  For which reason our chief employment in this volume will be to consider the redress of private wrongs, by suit or action in courts. 

Oliver Wendell Holmes, Jr. (1841 - 1935)

His Lectures The Common Law (1883) are perhaps the most influential work in the history of American tort law.  His essay The Path of the Law (1897) is one of the most influential in our legal history, famous for its realist, rather than moralist approach:

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts

 Benjamin Cardozo (1870 - 1938)


As a judge of the New York Court of Appeals, then the U.S. Supreme Court, Cardozo was an innovator.  His opinion in MacPherson v. Buick Motor Company (1916) freed tort law from the doctrinal strait jacket that limited the liability of a manufacturer to those with whom it dealt directly.  One of the great common law judges, Cardozo showed how the law must adapt to change:

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant's liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons.

It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.

A living tradition:
In an ordered society, one purpose of the law, particularly the common law of torts, is to provide a corrective mechanism for injustice. ..See W. Page Keeton et. al., Prosser and Keeton on Torts  (5th ed.1984)  supra, at 15. Common law claims must keep step with the schemes of those who would unfairly profit at the expense of others. It is our responsibility to ensure that formalistic distinctions and outdated definitions do not thwart justice. Rather, we must mold the common law to the unanticipated injustices that inevitably arise as our society advances through time. Our duty is "[t]o sustain, to repair, to beautify this noble pile" that is the common law. 4 William Blackstone, Commentaries on the Law of England 436 (1765-69).


In re Lead Paint Litigation, 191 N.J. 405, 450 (N.J. 2007)
Zazzali, CJ, dissenting