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Malicious Prosecution, False Imprisonment and Defamation, 15 Texas Law Review 157 (1937)


The remark has occasionally been made that there is nothing that can accurately be called a "law of tort" in the sense of a systematic and logically coherent body of legal principles which disclose a consistent policy in the protection of those interests which it is the function of tort law to protect. This is partly or at least superficially true. Certainly legal literature does not reveal that quantity of analysis and systematic development of legal conceptions in the field of tort that has characterized the development of the law of contract. This may, in part, be explained by the somewhat checkered history of tort law, as compared with that of contract law. The diverse origins of the various "torts," and the tardy ripening of the idea of negligence as a source of liability, together with the difficulties of rationalizing the several liabilities without fault are obvious impediments to the growth of a uniform and logical structure. What is perhaps more important, the wide range of interests that are protected by tort law and the varying shades of protection required therefor indicate a slow growth of the rational side of this branch of law as compared with the almost unitary interest protected by the law of contracts. Whereas the latter is concerned with the shaping of a consistent policy to protect the interest in the security of promised advantages, the former must work out adequate protection for the interests in bodily security and freedom, security of property, reputation, privacy, marital and other domestic relations, mental and emotional interests, pecuniary interests connected with transactions and trade and business generally.

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Malicious Prosecution, False Imprisonment and Defamation, 15 Texas Law Review 157 (1937)

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