The Torts History Scholarship of Gary Schwartz: A Commentary
33 Pages Posted: 30 Oct 2002
Date Written: June 16, 2002
Abstract
This paper examines the historical scholarship of Gary Schwartz, spanning the industrial revolution to the late twentieth century. Schwartz sought to address a cluster of related questions. In particular, he inquired, how prominent are the strands of strict liability and negligence in the development of liability for accidental harm? And what does socioeconomic context provide in the way of explanation for the contours of accident law? And finally, what does the intellectual and political climate of the times contribute to our understanding of the dynamics of tort law?
In this essay, I will expand on these themes, before offering my own critique of Schwartz's views. Schwartz set out to show that the fault principle had far deeper historical roots, both before and during the Industrial Revolution, than prominent tort scholars recognized - and correspondingly, that late twentieth century tort law developments in many ways reinvigorated the judicial impulse towards a pervasive negligence system for unintentional harm. I will argue that Schwartz read the historical record correctly, for the most part. But that throughout the nineteenth century, and to a somewhat lesser extent, in the twentieth century as well, the fault principle appears less robust than his reading would suggest when assessed in the context of a wide array of no-duty and limited-duty rules that he never felt entirely comfortable embracing.
JEL Classification: K13
Suggested Citation: Suggested Citation