Document Type

Article

Comments

Foreword, "Modern Civil Procedure: Issues in Controversy" (with Judyth W. Pendell), 54 Law and Contemp. Probs. 1 (1991)

Abstract

Despite the seemingly universal introduction of social science methods of instruction, the staples of legal education today differ little from those of many decades ago. Even the most sophisticated modern lawyer continues to remember and understand the basic principles of civil law in terms of rules propounded to resolve discrete disputes between two single parties. If asked to name the foundations of our civil law, the lawyer today, like the lawyer of the 1920s, would almost certainly list Pennoyer v. Neff, Hadley v. Baxendale, Brown v. Kendall, and, perhaps, Palsgraf v. Long Island R.R. Company. These cases are recognized today as possessing a certain quaintness, but they remain the building blocks from which our conceptions of civil liability derive.

Regrettably, this conception of civil law is becoming increasingly anachronistic. The caseload of the modern civil judge is less likely to be dominated by an action involving an attempt to collect on a note against land (Pennoyer), or damages for delay in delivery (Hadley), or for suffering a hit from a stick (Brown) or a scale (Palsgraf), than by an action involving thejoinder of multiple parties with complex third-party liability claims asserting a causative link that requires complicated scientific understanding. However deeply they are revered, our ancient cases provide no more than a starting point for the unravelling of the difficult issues that are progressively overwhelming modern civil litigation.

Date of Authorship for this Version

1991

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