The Assault Upon the Citadel

Posted on Categories Legal Scholarship, Tort Law

I am no doubt dating myself, and that has been happening a lot lately, but Bill Prosser’s 1960 article in the Yale Law Journal probably has had the greatest influence on the way that I write and teach about the law [William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099 (1960)].  In that regard, it probably has had even more of an effect on me than any of my own articles.

In the Yale article Prosser traced the various exceptions that developed since Lord Abinger’s 1842 proclamation of the rule that tort liability would not aid one with no privity to a contract who was injured as a result of its breach.  His second article on the subject, some six years later is his final chapter in that story [William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791 (1966).

What initially attracted me to the Yale article was Prosser’s status as an icon.  I used his casebook and hornbook as a law student.  He was “Mr. Torts.”  But as I matured I found it offered so much more.  It clearly demonstrates that while some courts treat ancient rules as if they were holy writs, stare decisis is not a commitment to intellectual stagnation.  I believe that nowhere in the law is this truer than in Torts.  It also made clear that legal scholarship does not have to be a stranger to humor.  The two can coexist. 

Thus, in my own writing I always attempt to be a critic, albeit one who at times can point to humorous situations in the law.  In my teaching I attempt to call the students’ attention to how old law is not necessarily good law and always to be alert to areas where improvement is needed and to develop the ability to clearly articulate why that is so.

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