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The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?

Professors Kenneth Abraham and G. Edward White (hereafter “AW”) attempt to answer that question with regard to tort law in their latest book. AW present an illuminating study of legal change grounded in compelling tort history. The book is derived from five articles AW recently co-authored. Each article describes an episode of lost tort history that “departs from the principal focus of tort law scholarship over the last century, liability for accidental bodily injury and property damage.” (P. 3.) Two of the episodes are about tort law generally and three involve intangible harm. After publishing the articles, AW determined that a theme linked all five.

The theme AW perceived is that “change in tort law is … ‘constructed,’” (ix), by which they mean “that what the courts say the law is, and how they say they have or have not changed the law, is an important ingredient of what the law is. In this sense change is constructed or built.” (P. 1.) Additionally, AW state, “change occurs by constructing, or construing, the meaning of the past.” (P. 1.)

This process usually involves “filtering” and sometimes involves “cloaking.” According to AW, “[f]iltering is the process by which the contemporary policy implications of new cases, rather than being considered independently, are evaluated within established doctrinal frameworks to see where a new case with those policy implications fits within those frameworks.” (P. 12.) Filtering is part of the dominant model of common law change: “gradual, step-by-step change in which an exception to a rule expands to the point at which it eventually becomes the rule.” (P. 3.) Pursuant to this model, there is no destabilization because changes in the law are “almost imperceptible.” (P. 3.)

AW point to other episodes in tort history in which change was not constructed in the “seamless way the dominant model envisions.” (P. 3.) Such changes may involve cloaking, “the process by which newly emergent doctrine is described (cloaked) in the language of existing doctrinal principles, when in fact those principles have been modified in response to newly perceived policy considerations.” (P. 13.)

The processes of filtering, the evaluation through established doctrinal frameworks, and cloaking, using the language of existing doctrinal principles, both rely upon doctrine. Doctrine consists of previous cases stretching back in time, or, as AW call it, “history.” (P. 10.) It is in this manner that history is “an inevitable part of the process by which judges make decisions in tort cases.” (P. 10.) AW acknowledge that many of the changes in tort law were contingent, in the sense that they were not bound to happen. (P. 13.) However, “whenever a tort law change that was contingent materializes, the way it materializes and the way it is situated within a doctrinal framework is inevitably influenced by tort law’s history.” (P. 14.)

The heart of the book, full of rich details, is the five episodes from tort history. Episode one is the abandonment of the prohibition on party testimony that occurred in the latter part of the nineteenth century.1 Although this is an evidentiary matter, AW convincingly argue the abolition of the rule helped create modern tort law by expanding the number of negligence cases. Episode two is the struggle to conceptualize tort law that occurred in the wake of the abolition of the forms of action.2 Episode three is a mid-twentieth century attempt by several influential scholars to merge the “dignitary” torts into a unified cause of action.3 Episode four is the constitutionalization of some tort liability, including limiting the tort of defamation.4 Episode five is the failure of the prima facie tort and its significance for the recognition of future torts.5

Many readers are likely familiar with AW’s articles, three of which have themselves been the subjects of Jots.6 In this Jot, I focus mostly on the book’s theme, as opposed to the content from the original articles.

The episodes allow AW to discern patterns. Legal change is a function of both external forces and internal, doctrinal frameworks created by precedent or history. Rarely, external forces are so powerful that they “overwhelm established doctrines of practices.” (P. 214.) In episode one, AW recount the history of the abandonment of the prohibition on party testimony. According to AW, not only was the doctrine discarded, but so was the entire intellectual apparatus supporting it. Neither filtering nor cloaking was required; legislatures repealed the rule. In such an instance, the public has so thoroughly altered its belief system that no continuity is needed or desirable. This type of break from the past is not destabilizing.

Also rarely, but on the other end of the spectrum, pressure for change is internal, without any corresponding external stimulus. As an example, taken from episode two, AW detail Francis Bohlen’s attempt to reconceptualize the structure of tort law as he drafted the Restatement of Torts in the 1920s. Bohlen attempted to bring to tort law the internal coherence that it lacked; there was no external pressure from the practicing bar or public. The attempt failed, AW state, at least in part because “of the inevitable gravitational pull of history, reflected in the structure of the forms of action.” (P. 215.)

A third, and dominant, pattern is when external forces pressure courts to make doctrinal changes. Because they are constrained by history and precedent, courts “seek to maintain the continuity between the past and the future.” (P. 215.) AW describe a few instances fitting this description, including the emergence in the twentieth century of intentional infliction of emotional distress and the privacy torts, discussed in episode three. Courts drew analogies to existing actions and engaged in cloaking because “there was no received doctrinal framework acknowledging the existence of any of the torts.” (P. 215.) Another instance, taken from episode four, was the constitutionalization of defamation, certain of the privacy torts, and IIED. The need for protection against liability for criticizing the government during the civil rights movement created pressure on the courts to modify tort doctrine. Yet the doctrinal changes enacted were analogous to prior non-constitutional privileges, maintaining continuity.

AW conclude the book by looking forward. What does the traditional process of change mean for recognizing future torts? In their view, the forms of action continue to influence developing torts. Furthermore, two factors distinguish successful new causes of action from those that fail: normative weight and justiciability. Normative weight is straightforward; the more conduct is perceived by the world outside the legal system as wrongful, the more likely it is to lead to liability. (P. 205.) Justiciability covers several jurisprudential and practical considerations, including the availability of analogous precedent, the discreteness of the cause of action, the cognizability and adequacy of damages, and the number of potential suits. (P. 205.) Due to filtering, the more precedent is available to analogize to a new tort cause of action, the more likely it is to be recognized. Discrete torts, often with concrete elements, aimed at specific types of injuries have tended to be more successful in becoming established. As AW state, “a potential tort that would be open-ended tends to be unappealing to the courts.” (P. 208.) AW’s discussion in episode five of the failure of the prima facie tort, a vaguely defined tort aimed at residual liability, supports this conclusion. Damages are important because the greater the amount of damages involved, the greater the normative weight a wrong tends to have. Moreover, in a system that compensates plaintiffs’ lawyers via the contingent fee, substantial damages are necessary to attract representation. Finally, courts will need a critical mass of cases in order to construct change.

I appreciate AW’s focus on intangible harm both because it often is neglected and because it is growing in importance. Moreover, AW provide examples of how several seminal physical harm cases fit the dominant model of common law change. (P. 11.) Given the importance of physical harm, however, a more explicit discussion that their theme generally works in physical harm cases would have been comforting. Relatedly, the book’s argument raises the question of why a judicial system that prefers discrete torts aimed at specific injuries would recognize the vague, open-ended tort of negligence so soon after the writ system collapsed. I would love to read that story, and I know who could deliver it.

Despite any possible quibbles, all scholars of tort and the common law should read this book. For those who have not read AW’s articles, the book is an excellent gateway to their prolific and influential work. For those who already have read their articles, the book’s theme adds a coherence and depth to the earlier scholarship that is well worth your time.

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  1. Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, 59 Ariz. L. Rev. 431 (2017).
  2. Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle, 80 Maryland L. Rev. 293 (2021).
  3. Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev. 317 (2019).
  4. Kenneth S. Abraham & G. Edward White, First Amendment Imperialism and the Constitutionalization of Tort Liability, 98 Tex. L. Rev. 813 (2020).
  5. Kenneth S. Abraham & G. Edward White, Torts Without Names, New Torts, and the Future of Liability for Intangible Harm, 68 Am. U. L. Rev. 2089 (2019).
  6. Kenneth W. Simons, Is Tort Law Hopelessly Fragmented?, JOTWELL (July 27, 2020) (reviewing Kenneth S. Abraham & G. Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle 80 Maryland L. Rev. 293 (2021), https://torts.jotwell.com/is-tort-law-hopelessly-fragmented/; Gregory Keating, What Ever Happened to Dignity?, JOTWELL (October 12, 2018) (reviewing Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev. 317 (2019), https://torts.jotwell.com/what-ever-happened-to-dignity/; Anthony Sebok, What Is It Like to Think Like a Pre-Modern?, JOTWELL (February 13, 2017) (reviewing Kenneth S. Abraham & G. Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, 59 Ariz. L. Rev. 431 (2017), https://torts.jotwell.com/what-is-it-like-to-think-like-a-pre-modern/.
Cite as: Christopher J. Robinette, Stability and Progress, JOTWELL (April 8, 2022) (reviewing Kenneth S. Abraham & G. Edward White, Tort Law and the Construction of Change: Studies in the Inevitability of History (2022)), https://torts.jotwell.com/stability-and-progress/.