Tuesday, September 23, 2014

Prosser and his Influence // Abraham and White

William L. Prosser

Kenneth S. Abraham and G. Edward White have done us the favor of assessing “Prosser and his Influence”.  Prosser is, of course, William Prosser - the legendary torts treatise writer and ALI 2d Restatement of Torts Reporter.  After a brief biographical sketch (he was no charmer and no progressive) the Virginia law professors analyze the strategy and style of Prosser’s torts treatise as a window on his outsized influence on the law.   Abraham and White identify a method that could be called “boldly asserted, plausibly maintained”.
By identifying “emerging trends” in the law - such as the torts of invasion of privacy and intentional infliction of emotional distress (IIED) - Prosser sought to give doctrinal coherence to the cacophony of tort law.  The project was welcomed by lawyers who saw opportunities to explain and advance the law by doctrinal argument.  This was a much more promising tool than the anarchy offered by Legal Realists who saw only contending forces rather than logical development in the law.  His assertions often had less support than his confident but carefully qualified language suggested.  But he was perspicacious in many respects about how the law would develop.  Prosser’s recognition - and advocacy - of the torts of IIED and breach of privacy laid the foundation for important developments in recognition of dignitary harms, such as the concept of the “hostile environment” in workplace discrimination actions brought by women and ethnic minorities.  - gwc

Prosser and His Influence


Kenneth S. Abraham 


University of Virginia School of Law

G. Edward White 


University of Virginia School of Law 

August 20, 2014

Journal of Tort Law, Forthcoming 
Virginia Public Law and Legal Theory Research Paper No. 2014-51 


This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.

We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.

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