Harvard Law Review: The Best of Tort Law

Author: (American) Brandeis
Publisher:
Publication Date: 2005-12-01
Features: The Harvard Law Review: Torts is a collection of the best essays on tort law from the Harvard Law Review over a century. American tort law is one of the most extensive and profound branches of common law, with an overwhelming number of scholarly works. Those published in the Harvard Law Review alone are already considered premium pieces, and selecting the best among them is a task of monumental difficulty, yet one that is necessary. Tort law is a relatively new area of legislation in China, and the protection of privacy rights is currently still reliant on the shell of the right to reputation. Therefore, seeking inspiration from other sources to refine our understanding is entirely justifiable. The purpose of this selected collection is twofold: First, we aim to shift our focus from the rules of Anglo-American tort law to its theoretical underpinnings. Research on Anglo-American tort law in China is still in its infancy, primarily the introduction of rules and the import of textbooks. From a theoretical perspective, this is insufficient. Theoretical research requires moving beyond specific legal institutions to engage in broader discussions on tort law theory. The interplay between legal institutions and legal doctrines has been a characteristic of Western legal traditions since the 12th century. If judges' practices are reflected in case law, from which we can discern legal rules, principles, standards, and public policy, then the legal spirit embodied in these rules and principles resides in the minds of legal scholars. Their intellectual contributions can manifest as legal textbooks or specialized works. In contemporary terms, the intellectual output of legal scholars, particularly those in the United States, is more often found in legal articles published in journals like the Harvard Law Review. This means that through the tort law essays in the Harvard Law Review, we can identify the theoretical achievements of Anglo-American tort law. Second, from the perspective of a renowned legal journal, we seek to trace 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 articles published in this journal have become classics in legal history. Last year, our press published a photocopied edition of Foundations of Tort Law. In that book, the editor selected representative essays and excerpts from tort law 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 provides a cross-sectional view of the broader picture, while this Harvard Law Review: Torts offers a longitudinal perspective. The earliest essay 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 literature, they serve as a mirror at least. Through this mirror, we can observe the theoretical development of American tort law over the past century. The first essay is The Right to Privacy co-authored by Samuel D. Warren and Louis D. Brandeis. The reason for selecting 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 established a new right in American law—the right to privacy based on personality. Even today, when tort scholars discuss privacy rights, they trace their origins to this essay. The second essay is Principles of Torts by Warren A. Seavey, published in 1942. In this essay, 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 yet been recognized as an independent discipline in law schools. Titled Principles of Torts, the essay seems to aim at establishing a theoretical system for tort law from a theoretical standpoint. The third essay is Creative Continuity in the Law of Torts by Robert E. Keeton, published in 1962. The law must be stable, yet it 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 essay, Negligence: Subjective or Objective?, by Professor Keeton, is worth reading for those who appreciate the classical philosophical dichotomy of "subjective" and "objective." Following this are excellent essays 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 hypotheses and rigorous arguments. Due to space constraints, we cannot list them all here. Those interested are encouraged to read the book for themselves.