Scholars of Tort Law: Professor William Lloyd Prosser (1898-1972)

James Goudkamp & Donal Nolan (eds), Scholars of Tort Law (Hart 2019) 229-257

Widener Law Commonwealth Research Paper No. 21-2

38 Pages Posted: 11 Jan 2021

Date Written: October 3, 2019

Abstract

This chapter, presented at Oxford at the “Scholars of Tort Law” conference, is concerned with William Prosser, the most important U.S. tort scholar of the twentieth century. Prosser exerted considerable influence on the development of several specific tort doctrines, notably strict products liability, privacy, and intentional infliction of emotional distress. Instead of his well-known contributions to these discrete torts, this chapter focuses more broadly on Prosser’s overall effects, particularly regarding the paramount tort of negligence. Prosser attempted to adjust negligence to two Realist challenges: Realists’ belief in the public nature of seemingly private disputes and the undermining of certainty caused by emphasising the facts of each case. To the first challenge, Prosser reconceptualised the elements of negligence as involving public policy choices. To the second, Prosser attempted to present a negligence formula that was both flexible and predictable. Prosser succeeded in presenting a more flexible negligence formula incorporating public policy factors, but failed in enhancing predictability, with far-reaching consequences for tort law as a compensatory mechanism.

Keywords: tort law, intellectual history, tort scholars, negligence, William Prosser

JEL Classification: K13

Suggested Citation

Robinette, Christopher J., Scholars of Tort Law: Professor William Lloyd Prosser (1898-1972) (October 3, 2019). James Goudkamp & Donal Nolan (eds), Scholars of Tort Law (Hart 2019) 229-257, Widener Law Commonwealth Research Paper No. 21-2, Available at SSRN: https://ssrn.com/abstract=3764031

Christopher J. Robinette (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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