Conceptualizing Tort Law: The Continuous (And Continuing) Struggle

Kenneth S. Abraham & G. Edward White

Tort law emerged as a separate field in the 1870s. But it was a rocky start. In 1871, the young Oliver Wendell Holmes, Jr. asserted that “[t]orts is not a proper subject for a law book.” His reason for saying this was the absence of any “cohesion or legal relationship” among the topics grouped under the heading of “torts.” Holmes soon changed his mind, and within a decade had famously organized tort liability around the standards of conduct that governed different torts. Today all tort lawyers, scholars, and teachers following Holmes (whether they know it or not) understand that there are three bases of liability in tort: intent, negligence, and strict liability. That is ordinarily how we think about tort liability, and how we organize tort law in our thinking.