Foreword: David Fischer, the fox.

AuthorPartlett, David F.
PositionUniversity of Missouri School of Law professor - Symposium: A Tribute to Professor David Fischer - Testimonial

Foreword: David Fischer, the Fox(a)

It is my great pleasure to pen a few words in honor of my friend and fellow laborer in the torts vineyard, Professor David Fischer. Professor Fischer has been an intellectual force in the modern development of tort law. He has made us think hard about the implications of tort rules. He is in the intellectual tradition of a splitter, and not a lumper, in his scholarship. (1) Most of scholarship in modern tort law falls into the "lumper" camp. It is scholarship that looks at tort rules as encapsulating wider models that serve certain instrumental ends, or as part of a non-consequential system of norms; for example, law and economics has taken tort rules to reflect a system of rules that serve efficiency. Others view the rules as part of a system of private law that instantiates corrective justice. (2) Contrary rules are diminished and common themes emphasized. Even when discussing discrete aspects of tort law, most modern scholars are lumpers in applying broad theoretical frameworks to fit those aspects. (3) The most talked of aspect has been the duty concept in negligence. While the debate can be traced to the Palsgraf case, it has been given new life by the scholarship of Keating, Goldberg and Zipursky. The issue that separates these scholars derives from their views about the function of tort liability.

David Fischer is a splitter. He takes present or evolving doctrines and puts them under a powerful analytical microscope for examination. In so doing, he reveals differences, internal flaws, paradoxes and problems, and revels in the complexity. David Fischer, although not without strong views about the theoretical groundings of tort law, proposes no meta-theories. Instead, he does the hard work on the inside that, in the end, uncovers the problems and dilemmas for courts as they go about their business of ascribing responsibility for wrongful acts. (4) He is the fox of tort law.

  1. THE FOX AND CAUSATION

    Glen Robinson said once that every serious torts scholar eventually comes to causation. And, having arrived at that terminus, the scholar soon concludes that challenges abound. Causation is at the center of tort law. Old conundrums are to be found, and with the phenomena of enterprise liability and mass tort, we see causation in new manifestations. No modern scholars have taken on the task of unfolding the mysteries of causation, old and new, as thoroughly as David Fischer.

    Every student in first year torts has been subjected to the difficulties of causation. From an apparently clear distinction between proximate cause and causation-in-fact, a professor will confound her students by showing that the distinctions are fluid. She will show that the but for test is simply a beginning point; she will challenge students with the Wagon Mound cases, in drawing principled limits to tort liability. The role of policy is critical in those limits, although students will have problems in comprehension, as have courts and juries. (5) Some students will come to the first-year torts class armed with some knowledge of the philosophy of causation. (6) Most will not have thought about these issues. It is the strength of the case method with its allied Socratic teaching that students, through the cases, are pressed to go beyond causation easily determined to those situations where either logic breaks down or traditional doctrine is found too confining to accommodate the ends of tort law.

    David Fischer's scholarship on causation has come at a critical time for tort development. In a unique process to American law, the doctrine is examined through the American Law Institute's Restatement Process. Under the First and Second Restatement on Torts, causation was a centerpiece. This was the same, if not more so, for the Third Restatement, now on foot. Under the Third Restatement, early drafts threw the entire burden of confining liability on causation. The duty issue served as a limiting and as an auxiliary limiting factor. (7) Mainly due to some incisive scholarship of Goldberg and Zipursky, the role of duty was restored. Yet causation remains something of a "dog's breakfast." (8) The scholarly efforts of Jane Stapleton, Richard Wright, and David Fischer will bring order to that messy breakfast. Perhaps the courts will never find causation a "gentlemen's repast," but some order will reign if the work of David Fischer is properly noted.

    As in the life of all scholars, the stream of intellectual discourse can be traced in retrospect. In each field of tort inquiry, David Fischer has asked hard questions that others would not broach. The contribution of a splitter comes in this way. It is by way of painstaking analysis that is highly detailed and perhaps too finicky for lumpers, who hanker after the broad meta-theory unencumbered by contrary data. David Fischer's work describes a development from his ability to perceive the hard questions, to writing that is uncompromisingly clear in uncovering the issues, and to insights showing the reader ways of coping with the dilemmas of causation in the modern setting, where the law's job is so demanding.

  2. LOSS OF CHANCE

    In choosing to place the "loss of chance" theory under his microscope, David Fischer has characteristically taken on an intellectually...

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