the hidden holmes his theory of torts in history

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The Hidden Holmes

Author : David Rosenberg
ISBN : 0674390024
Genre : Law
File Size : 84. 32 MB
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This bold book challenges a contemporary consensus on the titanic figure of Oliver Wendell Holmes. Holmes is the acknowledged source of twentieth-century tort law, but David Rosenberg takes sharp issue with the current portrayal of Holmes as a legal formalist in torts who opposed the notion of strict liability and dogmatically advocated a universal rule of negligence, primarily to subsidize industrial development. Marshaling the evidence found in Holmes' classic The Common Law and other writings, the author reveals that the opposite was the case, and, in the process, raises troubling questions about the present state of legal scholarship. It was Holmes who founded the modern conception and justification of strict liability. He envisioned an expansive role for strict liability to augment the negligence rule in preventing and redressing injury from industrial activity. This recovery of Holmes' theory of torts provides new insights into the nature of the jurisprudence that launched the American legal realist movement, and also overturns standard interpretations of the history of tort law. Rejecting the prevailing view that either strict liability or negligence reigned exclusively, Holmes and his contemporaries reconciled the existence of both rules, and advocated reforms of tort law to protect society from the unprecedented hazards of industrial life. The parallel drawn by the book between their response and ours in grappling with the novel problem of mass torts confirms Holmes' belief in the adaptive genius of the common law.

The Public Life Of Privacy In Nineteenth Century American Literature

Author : Stacey Margolis
ISBN : 9780822386674
Genre : Literary Criticism
File Size : 41. 58 MB
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Stacey Margolis rethinks a key chapter in American literary history, challenging the idea that nineteenth-century American culture was dominated by an ideology of privacy that defined subjects in terms of their intentions and desires. She reveals how writers from Nathaniel Hawthorne to Henry James depicted a world in which characters could only be understood—and, more importantly, could only understand themselves—through their public actions. She argues that the social issues that nineteenth-century novelists analyzed—including race, sexuality, the market, and the law—formed integral parts of a broader cultural shift toward understanding individuals not according to their feelings, desires, or intentions, but rather in light of the various inevitable traces they left on the world. Margolis provides readings of fiction by Hawthorne and James as well as Susan Warner, Mark Twain, Charles Chesnutt, and Pauline Hopkins. In these writers’ works, she traces a distinctive novelistic tradition that viewed social developments—such as changes in political partisanship and childhood education and the rise of new politico-legal forms like negligence law—as means for understanding how individuals were shaped by their interactions with society. The Public Life of Privacy in Nineteenth-Century American Literature adds a new level of complexity to understandings of nineteenth-century American culture by illuminating a literary tradition full of accidents, mistakes, and unintended consequences—one in which feelings and desires were often overshadowed by all that was external to the self.

Oliver Wendell Holmes Jr Legal Theory And Judicial Restraint

Author : Frederic R. Kellogg
ISBN : 9781139460873
Genre : Philosophy
File Size : 75. 57 MB
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Oliver Wendell Holmes, Jr, is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes's leading critics and explains his relevance to the controversy over judicial activism and restraint. Holmes is shown to be an original legal theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law, with its roots in American pragmatism, emerged Holmes's distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers.

The Accidental Republic

Author : John Fabian Witt
ISBN : 0674045270
Genre : Law
File Size : 59. 86 MB
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In the five decades after the Civil War, the United States witnessed a profusion of legal institutions designed to cope with the nation's exceptionally acute industrial accident crisis. Jurists elaborated the common law of torts. Workingmen's organizations founded a widespread system of cooperative insurance. Leading employers instituted welfare-capitalist accident relief funds. And social reformers advocated compulsory insurance such as workmen's compensation. John Fabian Witt argues that experiments in accident law at the turn of the twentieth century arose out of competing views of the loose network of ideas and institutions that historians call the ideology of free labor. These experiments a century ago shaped twentieth- and twenty-first-century American accident law; they laid the foundations of the American administrative state; and they occasioned a still hotly contested legal transformation from the principles of free labor to the categories of insurance and risk. In this eclectic moment at the beginnings of the modern state, Witt describes American accident law as a contingent set of institutions that might plausibly have developed along a number of historical paths. In turn, he suggests, the making of American accident law is the story of the equally contingent remaking of our accidental republic. Table of Contents: Introduction 1. Crippled Workingmen, Destitute Widows, and the Crisis of Free Labor 2. The Dilemmas of Classical Tort Law 3. The Cooperative Insurance Movement 4. From Markets to Managers 5. Widows, Actuaries, and the Logics of Social Insurance 6. The Passion of William Werner 7. The Accidental Republic Conclusion Notes Acknowledgments Index John Witt paints his portrait of industrializing America with the subtlety of a master and on an immense canvas. His magisterial history is much more than an account of the rise of workers compensation, still one of our greatest social reforms. Witt vividly recreates the social context of the late 19th century industrial world - workers' appalling injury and death rates, their mutual help and insurance associations, mass immigration, the rise of Taylorist management, the struggles to give new meaning to the free labor ideal, the encounter between European social engineering and American anti-statism and individualism, and the politics and economics of labor relations in the Progressive era. Out of these materials, Witt shows, the law helped fashion a new social order. His analysis has great contemporary significance, revealing both the alluring possibilities and the enduring limits of legal reform in America. It is destined to become a classic of social and legal history. --Peter H. Schuck, author of Diversity in America: Keeping Government at a Safe Distance John Witt shows us the power of perceptive legal history at work. Within the tangle of compensation for industrial accidents, he discovers not only a legal struggle whose outcome set the pattern for many 20th century interventions of government in economic life, but also a momentous confrontation between contract and collective responsibility. Anyone who finds American history absorbing will gain pleasure and insight from this book. --Viviana Zelizer, Princeton University, author of The Social Meaning of Money: Pin Money, Paychecks, Poor Relief, and Other Currencies In 1940 Willard Hurst and Lloyd Garrison inaugurated modern socio-legal studies in the United States with their history of workers' injuries and legal process in Wisconsin. Two generations later, John Fabian Witt's The Accidental Republic marks the full maturation of that field of inquiry. Deftly integrating a legal analysis of tort doctrine, a history of industrial accidents, and a fresh political-economic understanding of statecraft, Witt demonstrates the significance of turn-of-the-century struggles over work, injury, risk, reparation, and regulation in the making of our modern world. Sophisticated, comprehensive, and interdisciplinary, The Accidental Republic is legal history as Hurst and Garrison imagined it could be. --William Novak, The University of Chicago, author of The People's Welfare: Law and Regulation in Nineteenth-Century America

Governing Hate And Race In The United States And South Africa

Author : Patrick Lynn Rivers
ISBN : 9780791477847
Genre : Political Science
File Size : 88. 89 MB
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Argues that the responsibility for eradicating racial hatred has been redirected away from the state and toward the hated, leaving the causes of hate unaddressed.

Essential Law For Social Workers

Author : Robert G. Madden
ISBN : 9780231508995
Genre : Social Science
File Size : 50. 62 MB
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Whether protecting their own rights or those of their clients, or navigating the juvenile justice, immigration, or welfare systems, social workers confront legal issues every day. This book explores legal concepts, legal reasoning, and legal processes—illustrated with case vignettes from social work practice—in order to provide social work practitioners and students with practical and accessible legal knowledge. It introduces readers to scholarship about the law and to conceptual knowledge that can be applied to any interaction with the legal system. Social workers are thereby enabled to "think like a lawyer" and increase their effectiveness. The volume features a discussion of recent reform movements, including Alternative Dispute Resolution, and an appendix of sources for legal information and research on the law.

The Journal Of American History

Author : Organization of American historians
ISBN : 00218723
Genre :
File Size : 75. 99 MB
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The Path Of The Law

Author : Oliver Wendell Holmes Jr.
ISBN : 9781775410577
Genre : Law
File Size : 66. 82 MB
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The Path of the Law is a short essay by Oliver Wendell Holmes, Jr., an American jurist who served on the Supreme Court of the United States from 1902 to 1932. A cornerstone of his jurisprudential philosophy was the prediction theory of law, believing the law should be defined specifically as a prediction of how the courts work. In The Path of the Law Holmes argues that a criminal isn't concerned about ethics or conceptions of natural law; they are concerned about avoiding punishment and jail. "The law", therefore, should be based on prediction of what will bring about punishment via the court system.

Australian Journal Of Legal History

Author :
ISBN : STANFORD:36105062246009
Genre : Law
File Size : 90. 6 MB
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Modern Tort Law 7 E

Author : V.H. Harpwood
ISBN : 9781135253004
Genre : Law
File Size : 58. 70 MB
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Modern Tort Law is a comprehensive, accessible and up-to-date introduction to the law of torts. Now in its seventh edition, Vivienne Harpwood’s popular, student-friendly text explains the principles of all aspects of tort law in a lively and thought-provoking manner. The broad coverage of modern tort law makes this an ideal textbook for any undergraduate tort law course. Students are encouraged to understand and apply the principles of tort law effectively throughout and particular attention is paid to the context within which the law is evolving, making these topics both accessible and enjoyable. This seventh edition has been revised and updated to take into account developments since publication of the previous edition including in the areas of privacy, negligence, personal injury and defamation. Human Rights issues are integrated throughout the text rather than treating the topic in isolation, in line with the way the subject is commonly taught. Now more accessible and student-friendly, it includes: advice on further reading at the end of each chapter which is intended to point students towards sources of further study and critical debate new chapter introductions, rewritten to reflect learning outcomes. Modern Tort Law is now supported by a Companion Website which offers lecturer resources available to adopters of the book, including ‘think points’ designed to encourage reflection and debate and PowerPoints of diagrams and flowcharts contained within the text. A dedicated student section also offers weblinks, a guide to key Tort law cases, a flashcard glossary and a test bank of multiple choice questions.

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