Harvard Law Review (Essentials of Tort Law)

Author: (American) Brandeis, written by Xu Aiguo, translated by
Publisher:
Publishing Date: 2005-12-01
Features: "The Harvard Law Review ? Tort Law Volume" is a collection of century-old essays on tort law from the renowned "Harvard Law Review." Tort law in the United States is one of the most extensive and profound branches of common law, with an overwhelming number of scholarly works. Even those published in the "Harvard Law Review" are already considered premium pieces, and selecting the best among them is a task as impossible as catching the wind. Yet, it is a task that must be undertaken. Tort law is a relatively late-recognized area in China's legislative process, and the protection of privacy rights still relies on the shell of the right to reputation. Therefore, seeking wisdom from other mountains is perfectly justified. 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, primarily the introduction of rules and the import of textbooks. From a theoretical perspective, 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 monographs. From a contemporary perspective, the intellectual contributions of legal scholars, especially those in the United States, are more often expressed in legal articles in law journals. This means that through the academic articles on tort law in the "Harvard Law Review," we aim to find the theoretical achievements of Anglo-American tort law. Second, from the perspective of a renowned law journal, we seek to trace the evolution of tort law theory in the United States. Harvard Law School and its Law Review cannot be said to be the best, but at least they are 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 excerpts from representative tort law articles 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 article we selected was published in 1890, and the most recent in 1998. While articles in the "Harvard Law Review" cannot encompass all tort law literature, they at least serve as a mirror. 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. It is chosen as the opening piece for two reasons: First, Brandeis himself was one of the founders of the "Harvard Law Review." Second, the article "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 their origins to this paper. The second essay 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 states that even in Holmes' time, tort law had not been recognized as an independent discipline in law schools. Titled "Principles of Torts," the paper 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. Laws 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 essay, by Professor Keeton, further analyzes "Negligence: Subjective or Objective?" and 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 Richard A. Epstein, A. Mitchell Polinsky, and Steven Shavell, covering major topics in American tort law with bold assumptions and rigorous arguments. For those interested, the book is highly recommended.
The Harvard Law Review ? Tort Law Volume is a collection of century-old essays on tort law from the renowned "Harvard Law Review." Tort law in the United States is one of the most extensive and profound branches of common law, with an overwhelming number of scholarly works. Even those published in the "Harvard Law Review" are already considered premium pieces, and selecting the best among them is a task as impossible as catching the wind. Yet, it is a task that must be undertaken. Tort law is a relatively late-recognized area in China's legislative process, and the protection of privacy rights still relies on the shell of the right to reputation. Therefore, seeking wisdom from other mountains is perfectly justified. 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, primarily the introduction of rules and the import of textbooks. From a theoretical perspective, 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 monographs. From a contemporary perspective, the intellectual contributions of legal scholars, especially those in the United States, are more often expressed in legal articles in law journals. This means that through the academic articles on tort law in the "Harvard Law Review," we aim to find the theoretical achievements of Anglo-American tort law. Second, from the perspective of a renowned law journal, we seek to trace the evolution of tort law theory in the United States. Harvard Law School and its Law Review cannot be said to be the best, but at least they are 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 excerpts from representative tort law articles 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 article we selected was published in 1890, and the most recent in 1998. While articles in the "Harvard Law Review" cannot encompass all tort law literature, they at least serve as a mirror. 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. It is chosen as the opening piece for two reasons: First, Brandeis himself was one of the founders of the "Harvard Law Review." Second, the article "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 their origins to this paper. The second essay 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 states that even in Holmes' time, tort law had not been recognized as an independent discipline in law schools. Titled "Principles of Torts," the paper 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. Laws 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 essay, by Professor Keeton, further analyzes "Negligence: Subjective or Objective?" and 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 Richard A. Epstein, A. Mitchell Polinsky, and Steven Shavell, covering major topics in American tort law with bold assumptions and rigorous arguments. For those interested, the book is highly recommended.