![handle is hein.journals/unswform2021 and id is 1 raw text is: Review: Scholars of Tort Law
REVIEW: SCHOLARS OF TORT LAW (HART PUBLISHING, 2019)
PRUE VINES*
Review of Scholars of Tort Law (James Goudkamp and Donal Nolan (eds),
Hart Publishing, 2019, ISBN 978-1-50991-057-1)
This volume brings together some accounts of significant tort scholars. It is an
intriguing collection in that it does what I consider to be the best form of
intellectual biography, including elements of the life that contributed to the
intellectual context of the scholar while focusing on the impact and structure of
their work. This is a transatlantic common law volume focusing on United States
('US') and United Kingdom ('UK') scholars, but Sir John Salmond and John
Fleming introduce some (slightly) antipodean flavour.
As Chapter One, written by the editors, recognises, it is extremely difficult to
measure the scholarly impact of any one scholar in tort law. Are we to measure the
number of books sold? The number of citations by courts? The influence on
students? This latter seems to be out. So a judgment has to be made by taking into
account a whole range of factors and coming to judgment. Goudkamp and Nolan
suggest that their collection includes pioneers, consolidators and iconoclasts, and
also that it shows the ebb and flow of connection between the common law
countries.
Benjamin Zipursky and John Goldberg discuss Thomas Cooley and Oliver
Wendell Holmes in Chapter Two. Cooley is less well known to those outside the
US than Holmes, and it is interesting to see that Cooley was a proponent of the
'wrongs-and-redress' view of torts which seems an early progenitor of Zipursky
and Goldberg's civil recourse theory.1 This contrasts with Holmes' loss-based
account. Both seem to have had a strong positivist view that law and morals had
to be separated. Why Holmes is so much better known, when he actually does not
reflect the law of the time as well as Cooley is an interesting question.2
As is usual for Robert Stevens, he takes us on a hilarious romp through his
views. In this chapter, his subject is Sir Frederick Pollock. It is an entertaining
* Professor and Associate Dean (Education), Co-director Private Law Research and Policy Group, UNSW.
1 John CP Goldberg and Benjamin C Zipursky, 'Thomas McIntyre Cooley (1824-1898) and Oliver
Wendell Holmes (1841-1935): The Arc of American Tort Theory' in James Goudkamp and Donal Nolan
(eds), Scholars ofTort Law (Hart Publishing, 2019) 43, 44.
2 Ibid 58.
[2021] No 1
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