Harvard Law Review · Selected Writings on Tort Law

Author: (USA) Brandeis Xu Guo'ai
Publisher:
Publishing Date: 2005-12-01
Features: The Harvard Law Review: Tort Law Volume is a collection of the best papers from the century-old Harvard Law Review on tort law. Tort law in the United States is one of the most extensive and profound branches of common law, with an overwhelming number of papers on the subject. Those published in the Harvard Law Review alone are already gems, and to select the best among these gems is indeed a daunting task, but one that is necessary. Tort law has been a latecomer to Chinese legislation, and the protection of privacy rights is still often achieved through the shell of the right to reputation. Therefore, seeking wisdom from other mountains is justifiable. The purpose of this selected collection is twofold: First, we aim to shift our focus from the rule-based level of Anglo-American tort law to its theoretical level. Research on Anglo-American tort law in China is still in its infancy, largely the introduction of rules and the import of textbooks. From a theoretical perspective, simply achieving this is insufficient. Theoretical research requires going beyond specific tort law systems and engaging in theoretical discussions. The interaction between legal systems and legal doctrines has been a characteristic of Western legal traditions since the 12th century. If a judge's practice is reflected in judicial precedents, from which we can discover legal rules, principles, standards, and public policy, then the legal spirit embodied in these rules and principles exists in the minds of legal scholars. The intellectual achievements of legal scholars can manifest as legal textbooks or specialized legal works. From a contemporary perspective, the intellectual contributions of legal scholars, particularly those of American legal scholars, are more often expressed in legal papers published in legal journals. This means that through the academic papers on tort law in the Harvard Law Review, we seek to find the theoretical achievements of Anglo-American tort law. Second, from the perspective of a renowned legal journal, we explore the evolution of tort law theory in the United States. The Harvard Law School and its Harvard Law Review may not be the best, but they are at least first-class. Many of the papers published in this journal have become classics in the history of law. Last year, our press published a photocopied edition of Foundations of Tort Law. In that book, the editor selected excerpts from representative tort law papers and legal works from the 1960s to the 1990s, giving us a glimpse of the theoretical landscape of American tort law over those three decades. That book presented a cross-sectional view of a relatively comprehensive picture, while this Harvard Law Review: Tort Law Volume offers a longitudinal one. The earliest paper we selected was published in 1890, and the most recent in 1998. While the articles in the Harvard Law Review cannot encompass all tort law papers, they serve as a mirror. Through this mirror, we can sense the theoretical development of American tort law over the past century. The first paper is The Right to Privacy, co-authored by Samuel D. Warren and Louis D. Brandeis. The reason for choosing this as the opening piece is twofold: First, Brandeis himself was one of the founders of the Harvard Law Review. Second, The Right to Privacy created a new right in American law—the right to privacy based on personality. Even today, when tort law scholars discuss privacy rights, they trace them back to this paper. The second paper is Principles of Torts, published by Warren A. Seavey in 1942. In this paper, the author attempts to outline a theoretical framework for tort law from a theoretical perspective. The author claims that even in Holmes' time, tort law had not been recognized as an independent discipline by law schools. Titled Principles of Torts, the paper seems to aim at establishing a theoretical framework for tort law from a theoretical standpoint. The third paper is Creative Continuity in the Law of Torts by Robert E. Keeton, published in 1962. The law must be stable but cannot remain static. In the field of tort law, legal reform is reflected in the abolition of certain legal immunities (governmental, charitable, and family-related). Professor Keeton's conclusion is that creative cases are a wise path for judicial reform. The fourth paper, Negligence: Subjective or Objective?, by Professor Keeton, is worth reading for those who enjoy the classical philosophical dichotomy of "subjective" and "objective." Next, there are excellent papers by renowned scholars such as Professor Richard A. Epstein, Professor A. Mitchell Polinsky, and Professor Steven Shavell, covering major topics in American tort law, with bold assumptions and rigorous arguments. For those interested, the book is worth purchasing for a closer look. The Harvard Law Review: Tort Law Volume is a collection of the best papers from the century-old Harvard Law Review on tort law. Tort law in the United States is one of the most extensive and profound branches of common law, with an overwhelming number of papers on the subject. Those published in the Harvard Law Review alone are already gems, and to select the best among these gems is indeed a daunting task, but one that is necessary. Tort law has been a latecomer to Chinese legislation, and the protection of privacy rights is still often achieved through the shell of the right to reputation. Therefore, seeking wisdom from other mountains is justifiable. The purpose of this selected collection is twofold: First, we aim to shift our focus from the rule-based level of Anglo-American tort law to its theoretical level. Research on Anglo-American tort law in China is still in its infancy, largely the introduction of rules and the import of textbooks. From a theoretical perspective, simply achieving this is insufficient. Theoretical research requires going beyond specific tort law systems and engaging in theoretical discussions. The interaction between legal systems and legal doctrines has been a characteristic of Western legal traditions since the 12th century. If a judge's practice is reflected in judicial precedents, from which we can discover legal rules, principles, standards, and public policy, then the legal spirit embodied in these rules and principles exists in the minds of legal scholars. The intellectual achievements of legal scholars can manifest as legal textbooks or specialized legal works. From a contemporary perspective, the intellectual contributions of legal scholars, particularly those of American legal scholars, are more often expressed in legal papers published in legal journals. This means that through the academic papers on tort law in the Harvard Law Review, we seek to find the theoretical achievements of Anglo-American tort law. Second, from the perspective of a renowned legal journal, we explore the evolution of tort law theory in the United States. The Harvard Law School and its Harvard Law Review may not be the best, but they are at least first-class. Many of the papers published in this journal have become classics in the history of law. Last year, our press published a photocopied edition of Foundations of Tort Law. In that book, the editor selected excerpts from representative tort law papers and legal works from the 1960s to the 1990s, giving us a glimpse of the theoretical landscape of American tort law over those three decades. That book presented a cross-sectional view of a relatively comprehensive picture, while this Harvard Law Review: Tort Law Volume offers a longitudinal one. The earliest paper we selected was published in 1890, and the most recent in 1998. While the articles in the Harvard Law Review cannot encompass all tort law papers, they serve as a mirror. Through this mirror, we can sense the theoretical development of American tort law over the past century. The first paper is The Right to Privacy, co-authored by Samuel D. Warren and Louis D. Brandeis. The reason for choosing this as the opening piece is twofold: First, Brandeis himself was one of the founders of the Harvard Law Review. Second, The Right to Privacy created a new right in American law—the right to privacy based on personality. Even today, when tort law scholars discuss privacy rights, they trace them back to this paper.