The Torts History Scholarship of Gary Schwartz: A Commentary


This Article examines the historical scholarship of Gary Schwartz, spanning the Industrial Revolution to the late twentieth century. Schwartz set out to show that the fault principle had far deeper historical roots, both before and during the Industrial Revolution, than prominent American tort scholarship recognized-and correspondingly, that late twentieth-century tort law developments in many ways reinvigorated the judicial impulse towards a pervasive negligence system for unintentional harm. I argue that although Schwartz read the historical record correctly for the most part, the fault principle appears less robust than his reading would suggest-throughout the nineteenth century, and to a somewhat lesser extent, in the twentieth century as well-when assessed in the context of a wide array of no-duty and limited-duty rules that he never felt entirely comfortable embracing.

By uclalaw