History, Theory, and Tort: Four Theses

Brian Simpson’s article arguing that the House of Lords’ 1868 decision in Rylands v. Fletcher must be understood against the backdrop of contemporaneous, catastrophic dam failures is a work of history, first and foremost. Guido Calabresi’s book arguing that the costs of accidents are most likely to be minimized if liability is assigned to cheapest cost avoiders is a work of theory, first and foremost. Both deservedly classics, they ask different kinds of questions, and analyze them using different methods. Still, the foregoing contrast is easily overstated. Without theory, history risks a descent into trivia. Part of what makes Simpson’s article worth reading 35 years after its publication is that it has a theory about Rylands, and indeed about common law adjudication. Theory without history is lacking in its own way—angels dancing on pinheads and all that. Part of what makes