G. Edward White

The Marshall Court and cultural change, 1815-1835

Introduction 1. The origins of Marshall court jurisprudence I: cultural change and republicanism 2. The origins of Marshall court jurisprudence II: the nature and sources of law 3. The working life of the court 4. Prominent lawyers before the Marshall court 5. The justices of the Marshall court 6. The reporters: Henry Wheaton, Richard Peters, and Wheaton v. Peters 7. Admiralty jurisdiction 8. Sovereignty and union: federal jurisdiction and federal limitations on state power 9. Property, vested rights, and legislative regulation: the contract clause cases 10. Natural law and racial minorities: the courts response to slaves and Indians 11. Nonconstitutional cases I: real property, contracts and negotiable instruments, corporations 12. Nonconstitutional cases II: federal court jurisdiction and procedure, conflicts, criminal law 13. Nonconstitutional cases III: international law, prize, marine insurance 14. Of the court, time, and change.

The American Law Institute and the Triumph of Modernist Jurisprudence

In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.

The Internal Powers of the Chief Justice: The Nineteenth-Century Legacy

The literature on the role of the Chief Justice of the United States has been dominated by two stereotypes. One, perpetuated by Chief Justices themselves and generally endorsed by other Justices, is that the Chief Justice occupies the role of “first among equals,” meaning that the powers of the Chief are largely formal, such as personifying the Court as an institution, as opposed to substantive, such as exercising disproportionate influence on colleagues. The phrase “among equals” in the stereotype is designed to emphasize the fact that nine Justices participate in the Court’s decisions, that each of their votes is given equal weight, and that the central job tasks of the Chief— hearing arguments, deciding cases, writing opinions—are no different from those of the other Justices. The other stereotype, which has emerged primarily from social science literature, is that the Chief Justice has special opportunities to exercise “leadership” on the Court. This stereotype is connected to a theory of collective decision making in small groups. Although the

The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms

The deliberative process by which the International Court of Justice (ICJ) reaches its decisions, although a matter of public record,1 is largely ignored today even by specialists.2 Several reasons account for this situation: the limited availability and somewhat opaque nature of the Court’s published procedures;3 the lack of practical interest in this aspect of the Court’s task;4 the reluctance of judges in the past to discuss, at least in print, any aspect of the Court’s decisionmaking process;5 and the impression held in some quarters that this process is something of a mystery.6 Consequently, few students of the Court have more than a hazy impression of how it makes its decisions.7

Creating the National Pastime: Baseball Transforms Itself, 1903-1953.

List of IllustrationsPrefaceIntroduction3Ch. 1The Ballparks10Ch. 2The Enterprise, 1903-192347Ch. 3The Rise of the Commissioner: Gambling, the Black Sox, and the Creation of Baseball Heroes84Ch. 4The Negro Leagues127Ch. 5The Coming of Night Baseball160Ch. 6Baseball Journalists190Ch. 7Baseball on the Radio206Ch. 8Ethnicity and Baseball: Hank Greenberg and Joe DiMaggio245Ch. 9The Enterprise, 1923-1953275Ch. 10The Decline of the National Pastime316Notes331Index355

A Lost Search for a Generic Tort Action Protecting “Peace of Mind”

Abstract I plan to spend most of my time today setting forth the details of an episode in the mid twentieth-century history of American tort law, from which I intend to draw some observations on the place of history in tort law, or, put more precisely, the relationship between tort law and its surrounding cultural contexts, which amount to, when one has some distance from those contexts, its history. But before getting to that episode, I want to state, in general terms, what I take the relationship of tort law to its history to be. I don’t think tort law is any different from any other field of law, private or public, in its relationship to history. I’ve completed two books in a series called Law in American History, and am in the process of writing a third. The coverage of those works ranges from the colonial years through the twentieth century, and I take up fields in both public and private law, including torts. Throughout the books my theory of the relationship of law to its “history”–its surrounding contexts–is that the relationship is reciprocal. Law, at any point in time, is both affected by developments in the larger culture and affects them.

Prosser and His Influence

This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions. We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.

Justice Oliver Wendell Holmes: Law and the Inner Self@@@The Legacy of Oliver Wendell Holmes, Jr.@@@Holmes-Sheehan Correspondence: Letters of Justice Oliver Wendell Holmes, Jr. and Canon Patrick Augustine Sheehan

Oliver Wendell Holmes, Jr., distinguished American jurist, and Patrick Augustine Sheehan, an Irish clerical-savant, enjoyed a warm and notable friendship based largely on their exchange of letters from 1903, when they first met in Ireland, until 1913, the year of Sheehans death. This correspondence illuminates what is otherwise a largely hidden and little appreciated side of the mind and faith of Justince Holmes. Sheehan was able to draw from his friend an awareness and s ympathy for human frailty and its counterpoint, faith in a divine plan of earthly things, thoughts and feelings that surfaced in letters to other of his friends. The importance of this edition of the Holmes-Sheehan letters rests in the first instance on this discovery. But Canon Sheehan wsa no mere foil for Holmes as they discussed with equal insight issues as varied as the economic man and the age of faith, of classical works, including Dantes Divine Comedy and Pascals Pensees. Holmes discovered in the Canon a man of the most profound faith who remained open and tolerant of the beliefs and non-beliefs of others. He is better understood because of his affection for Sheehan, and, no less telling, because of the Canons admiration for him. Gary J. Aichele in Oliver Wendell Holmes, Jr.: Soldier, Scholar, Judge finds this set of letters perhaps the most unusualof any collection of Holmes correspondence published to date.

Legal Scholars and the Quest for Order in the Law of Civil Wrongs@@@Tort Law in America: An Intellectual History.

G. Edward White, Professor of Law at the University of Virginia, is among the most prolific and versatile of legal historians. In the past half-decade alone his scholarly output has included a major portrait of the American judiciary through the ages, The American Judicial Tradition (1976), a collection of essays on styles of legal reasoning in America, Patterns of American Legal Thought (1979), and an assortment of articles on a range of other topics. He has now presented us with his views on the historical development of the American law of torts, that is, the law governing civil wrongs not arising out of contract. Other historians have also dealt with various aspects of tort laws evolution. The subject is given extended treatment in Lawrence Friedmans History of American Law (1973). Morton Horwitzs recent monograph, The Transformation of American Law 1780-1860 (1977), offers provocative speculations on the connection between American industrialization and the rise of the negligence principle in the antebellum period. Tort Law in America: An Intellectual History, however, represents the first attempt by a scholar to give a comprehensive and systematic account of the development of this distinct field of American law. Tort law is a relative newcomer to the world of Anglo-American jurisprudence. Before the nineteenth century, no one thought of torts as a discrete branch of the law as they did the law of property, for example, or the law of crimes. At best it was conceived of as a residual category of the law, a kind of grab-bag collection of writs that one procured for civil wrongs that were not connected with the breach of some contractual obligation. And to the extent that there was any general principle of liability underlying the field, it was the simple one that anyone who caused harm to another was legally responsible whether or not his conduct had been in any sense blameworthy. Oddly, it was in the relatively less sophisticated legal environment of America, rather than in England, that the first efforts were made to find some order in the chaos of writs and to give torts a positive character of its own.