The Hidden Holmes

David Rosenberg

Published by Harvard University Press 1995

The Hidden Holmes

His Theory of Torts in History

David Rosenberg

https://doi.org/10.4159/harvard.9780674418493

Overview
Contents

About this book

This bold book challenges a contemporary consensus on the titanic figure of Oliver Wendell Holmes. Holmes is the acknowledged source of twentieth-century tort law, but David Rosenberg takes sharp issue with the current portrayal of Holmes as a legal formalist in torts who opposed the notion of strict liability and dogmatically advocated a universal rule of negligence, primarily to subsidize industrial development. Marshaling the evidence found in Holmes' classic The Common Law and other writings, the author reveals that the opposite was the case, and, in the process, raises troubling questions about the present state of legal scholarship.

It was Holmes who founded the modern conception and justification of strict liability. He envisioned an expansive role for strict liability to augment the negligence rule in preventing and redressing injury from industrial activity. This recovery of Holmes' theory of torts provides new insights into the nature of the jurisprudence that launched the American legal realist movement, and also overturns standard interpretations of the history of tort law.

Rejecting the prevailing view that either strict liability or negligence reigned exclusively, Holmes and his contemporaries reconciled the existence of both rules, and advocated reforms of tort law to protect society from the unprecedented hazards of industrial life. The parallel drawn by the book between their response and ours in grappling with the novel problem of mass torts confirms Holmes' belief in the adaptive genius of the common law.

Author information

Rosenberg David :

David Rosenberg is Professor of Law, Harvard Law School.

Reviews

Professor Rosenberg's book provides an excellent discussion of Holmes' theory of jurisprudence, his analysis of important principles in tort law, and legal scholarship and history. The insights into negligence and strict liability will be helpful to practitioners and judges.

Rosenberg's work teaches us to question what we think we know and to be wary of what 'everybody' knows to be true.' Highly recommended.

Topics

Frontmatter Publicly Available Download PDF	i
Preface Requires Authentication Unlicensed Licensed Download PDF	vii
Contents Publicly Available Download PDF	xi
Introduction Requires Authentication Unlicensed Licensed Download PDF	1
1. Formalist Legal Science Requires Authentication Unlicensed Licensed Download PDF	13
2. The New Jurisprudence Requires Authentication Unlicensed Licensed Download PDF	42
3. The Common Ground of Liability Requires Authentication Unlicensed Licensed Download PDF	69
4. General Theory of Torts Part One Requires Authentication Unlicensed Licensed Download PDF	98
5. General Theory of Torts Part Two Requires Authentication Unlicensed Licensed Download PDF	124
6. Holmes in History Requires Authentication Unlicensed Licensed Download PDF	146
Abbreviations Requires Authentication Unlicensed Licensed Download PDF	171
Principal Works Requires Authentication Unlicensed Licensed Download PDF	173
Notes Requires Authentication Unlicensed Licensed Download PDF	175
Index Requires Authentication Unlicensed Licensed Download PDF	275

(Deutsch)

Language: English
Publisher: Harvard University Press
Edition: Reprint 2014
Audience: Professional and scholarly;
Pages
- Front matter: 12
- Main content: 280
Keywords: Torts -- United States -- History.; Strict liability -- United States -- History.; Holmes, Oliver Wendell, 1841-1935 -- Contributions in torts.; LAW / Torts; LAW / Legal History

eBook

Published: October 1, 2013
ISBN: 9780674418493

Hardcover

Published: February 5, 1995
ISBN: 9780674418486