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Article

Comments

"You Can Call It Thucydides or You Can Call It Mustard Plaster, But It's All Proximate Cause Just the Same!"—In Memory of Fleming James, 91 Yale Law Journal 1 (1981)

Abstract

Yes, Jimmy was a legal realist who had no patience with word games, new or old. He treated ancient formalisms and neologisms alike, with the same cheerful, slightly bemused scorn. If the emperor had no clothes, it didn't matter whether the royal tailor had long served the court or had just been hired. Jimmy would describe what he saw, and always in a tone that suggested that he couldn't quite believe that others had not seen or had been unwilling to affirm what, to him, seemed obvious. And obvious it frequently was, but only after he had described it.

Yet Jimmy was unusual among the legal realists for he knew how to build as well as how to tear down. Much of tort law as he found it, as it had traditionally been described, made no sense because it ignored the existence of insurance. It was ripe for debunking. But Jimmy was not satisfied with pointing out the sham that many of the traditional formulations were and how courts and juries got around them. He had to develop new rules that would make sense, given insurance, for now. (Not forever. Like his great squash opponent, Grant Gilmore, he knew better than to fall into that trap.) And he had to do it with unfailing objectivity.

Date of Authorship for this Version

1981

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