Sexuality, Gender, and the Law.

AuthorFranke, Katherine M.

By William N. Eskridge, Jr.(**) and Nan D. Hunter.(***) Westbury, N.Y.: Foundation Press, 1997. Pp. xlviii, 1185.

Negligent, intentional, and strict liability torts. From a canonical standpoint, whatever else one might teach, it is not a first-year torts course if these three concepts are not covered. Torts has a canon, even a Restatement.(1) Yet a canon evolves only after some criteria of value has been established such that privileged texts can be identified according to some authoritative standard. In other words, a canon is the result of a process by which a rule of recognition identifies authoritative texts.

At what point can we say that torts became a field and an intact legal subject, the canon of which could be taught in law schools? Most often, casebooks reveal an existing canon, as is the case with most contemporary torts texts. However, during a period of field formation or reformation, casebooks can play a critical role in the evolution of a field, the creation of a disciplinary rule of recognition, and the concomitant development of a canon. Two new casebooks, William Rubenstein's Cases and Materials on Sexual Orientation and the Law(2) and William Eskridge and Nan Hunter's Sexuality, Gender, and the Law,(3) enter legal education at a moment when they can have a profound effect upon the formation of a law school subject, a legal field, and a canon. What is, or should be considered, the canon of the field alternatively termed gay/lesbian, sexual orientation, sexuality, or queer law? What should we teach? If a canon is "`a historical, political, and social product, something that is fashioned by men and women in the name of certain interests, partisan concerns, and social and political agenda,"'(4) then these books reflect two competing social and political agendas.

  1. CANON FORMATION IN TORTS: THE PERSUASIVE POWER OF ONE CONCEPTUAL SCHEME

    In a well-established field such as torts, contemporary law school texts reveal to students an existing canon.(5) But a century ago, the struggle to define a coherent subject called torts was being waged within the academy and the larger legal community. Until the end of the nineteenth century, the American legal system approached the problem of personal injuries by resort to common law writs of Trespass and Case.(6) While eighteenth- and nineteenth-century lawyers knew there was a distinction between these two forms of action, few could have elaborated just what that distinction was:

    It was certain there was a distinction [between trespass and case] even

    if nobody knew what it was .... The law itself was seen as based,

    not upon elementary ideas, but upon the common law writs, as

    consisting in a range of remedies which had as it were come down

    from the skies. If a case fell within the scope of no writ, then in

    general there was no law. If it fell within the scope of one writ, then

    in general no other writ could be proper.(7)

    In 1870, C.G. Addison published one of the first treatises on torts, in which he catalogued various common law forms of action but did not provide an overarching theory of torts.(8) In fact, Addison's timing was rather unfortunate, as he published the treatise at a time when the formal English writ system was losing favor in U.S. courts.(9) As a result, the book was not well received. An unsigned review, widely attributed to Oliver Wendell Holmes,(10) made a damning observation about Addison's book: "We are inclined to think that Torts is not a proper subject for a law book."(11) Between the lines of the review lay the judgment that the field of torts, such as it was in 1870 and such as it was captured in Addison's treatise, was merely an amalgam of procedural forms of action, rather than a coherent and unified system by which "to fix the dividing lines between those cases in which a man is liable for harm which he has done, and those in which he is not."(12)

    Addison's treatise had been reviewed in no small measure because Harvard Law School had determined to teach torts as a separate law school subject in 1870 and it was regarded as the work best adapted for a textbook.(13) Sensing that the time might be right for a new field to emerge, but in a form that provided overriding philosophical and theoretical principles, the reviewer ended with the following entreaty: "We long for the day when we may see these subjects treated by a writer capable of dealing with them philosophically, and self-sacrificing enough to write a treatise as if it were an integral part of a commentary on the entire body of the law."(14)

    That day was not long in coming. A second anonymous essay, again widely attributed to Holmes,(15) appeared in the American Law Review under the title, The Theory of Tort.(16) In this essay, the author outlined a tripartite conception of torts: liabilities in which culpability is in general an essential element (negligent torts); liabilities irrespective of culpability (strict liability torts); and liabilities arising from acts done intentionally (intentional torts).(17) Holmes would go on to develop more fully his metatheory of torts in The Common Law in 1881.(18) His project was "to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is."(19) He concluded that "[s]uch a theory is very hard to find. The law did not begin with a theory. It has never worked one out."(20) As such, the task fell to him to develop one. In so doing, Holmes located his conception of tort liability within a larger modernist discourse of human agency. Rather than relying upon arcane forms of action that organized wrongs by reference to the nature of the injury alleged, Holmes's theory was animated by a universal moral agent, the reasonable or prudent man: "The ideal average prudent man... is a constant, and his conduct under given circumstances is theoretically always the same."(21)

    In 1874, convinced of the soundness of the case method recently introduced to Harvard Law School by Dean Christopher Columbus Langdell, Professor James Barr Ames published for his Harvard students the first torts casebook.(22) In this text, Ames did not heed the call to theory provided by Holmes, but rather offered his students 800 pages covering the common law forms of action for trespass, case, conversion, and defamation. Ames's book contained not one negligence case.(23) In 1893, however, the second edition of the book devoted "six chapters to negligence, including discussions of standards of care, the concept of duty, and contributory negligence."(24) From that time forward, Holmes's theoretical framework has defined the field by locating the reasonable person at the center of a tripartite system of civil liability. Within this structure, a canon of tort law has evolved, and contemporary torts casebooks invariably include canonical cases, such as The T J. Hooper,(25) United States v. Carroll Towing Co.,(26) Palsgraf v. Long Island Railroad Co.,(27) and Escola v. Coca Cola Bottling Co.(28)

    The process by which torts emerged as the field we know today mirrored a larger process taking place in American jurisprudence during the latter half of the nineteenth century: the maturation of a distinctly American legal system. The movement away from the English common law writ system, and toward a new conceptual scheme based on fault, individual responsibility, and the emergence of generalized standards of care, was provoked in significant part by the writings of Holmes. But it also reflected a response to changes in the U.S. economy, most notably the emergence of national railroads, large mills, and industrialized factories producing numerous accidents between strangers.(29) A new theory of civil liability was necessary to respond adequately to a newly industrialized United States. Thus the canonical cases of tort law came to enjoy a privileged status according to criteria of value that reflected particular historical, social, and political agendas.

    In Doing What Comes Naturally, Stanley Fish observed that a powerful critic "can have a profound and direct effect on what gets taught in the schools, what appears in the curriculum, what gains entrance into the canon, what gets published, reviewed, anthologized, disseminated."(30) If ever this observation were true, it would be with respect to Holmes's theory of torts. With his general theory, Holmes created the field known as torts, shaped the curriculum of law school torts classes, and mapped out the contours of our contemporary torts canon. In the years since The Common Law, other torts theorists have tried to introduce new or alternative paradigms for conceptualizing the field of torts,(31) but with the exception of Guido Calabresi's introduction of law and economics,(32) the inertia of Holmes's model has been too powerful to resist.

  2. THE EVOLUTION OF A NEW FIELD: SEXUAL ORIENTATION/SEXUALITY AND THE LAW

    The two new casebooks I review here appear at a critical point in the maturing of the gay rights movement and as a distinctly gay some might say queer, American jurisprudence begins to emerge. Gay men and lesbians have just been found to have the right to marry under the Hawaii Constitution,(33) and the U.S. Supreme Court recently ruled that the Colorado Constitution cannot legitimately serve as the vehicle for the majority of Colorado citizens to express raw prejudice against gay people.(34) Both of these casebooks are clear, well-organized, and will teach very well. They will provide students with both doctrinal and theoretical grounding in areas of law and policy not typically covered in law school curricula. My goal in this Book Review is to locate the texts within an emerging legal field, and within gay and lesbian theory more generally. The choice to use one book over the other will derive not from any particular weaknesses in either, but from a view of what is the proper object of this subject.

    When I was in law school in 1983, classes on sexual orientation and...

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