The Unexpected Persistence of Negligence, 1980-2000

In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.\u27 In making that argument I employed the terms ideas and influence at multiple levels of generality. The argument would perhaps have been better under- stood if I had more clearly particularized the specificity and generality of my claims about ideas as causal agents. At the most specific level, I employed the term ideas to refer to particular doctrinal and policy proposals for tort law advanced by particular scholars and judges. Examples would be the vice principar\u27 doctrine, or the doctrine of last clear chance, or proposals for a system of workmen\u27s compensation governing certain types of industrial accidents. On a more general level, I used the term ideas to describe the starting presuppositions about the purposes and goals of the American tort system that drove those proposals, such as the idea that the primary purpose of tort law should be to compensate injured persons, or the competing idea that its primary purpose should be to deter or to punish risky conduct. At a still higher level of abstraction, I used the term ideas to refer to broad conceptions of law, as embodied in competing jurisprudential schools that surfaced in the American legal profession in the late nineteenth and twentieth centuries. Examples of those schools include what I called conceptualism, which treated law as the embodiment of universal principles of civil conduct represented in the concepts that were embedded in legal doctrines; realism, which equated law with the current doctrines and policies that courts believed had the greatest functional efficacy; and neoconceptualism, which revived an image of law, including tort law, as ordered by comprehensive principles, the source of which was no longer immanent universal truths but general insights about human behavior drawn from other scholarly disciplines. Finally, I used the term ideas to refer to changing perceptions of the sources of human knowledge in the nineteenth and twentieth centuries, a span of time in which human-oriented models for explaining and controlling change in the natural and social worlds, centering on forms of scientific inquiry, replaced externally- oriented models, centered on religious, natural, or historical forces. My different uses of the term ideas were not accompanied by an explicit theory of the causal relationships among the sets of ideas I described. Instead I drew the general conclusion that all of those sets of ideas influenced the course of tort law in nineteenth- and twentieth-century America. I continue to agree with that conclusion, but in this Essay, which surveys developments in tort law in the last two decades of the twentieth century, I want to particularize what I mean by ideas and their influence