Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
trespass. . . . On these reasons I concur with Brothers Gould and Nares, that the present action is
maintainable.
Notes
1. Direct and indirect. Given the liability standard set out in The Case of the Thorns and in
Weaver v. Ward, it seems vital to Blackstone that the writ of trespass be restricted to direct rather
than indirect consequences. The football (soccer!) example he offers illustrates his concern. Do
Nares or Gould have a good answer? On the other hand, is Blackstone’s distinction between
direct and indirect distinction sustainable? What about De Grey’s idea that directness follows
from the relevant agent’s intentions rather than from the path of the object in question? What
about Gould’s idea that Willis and Ryal were not agents in the right way?
2. The great William Blackstone. Blackstone, whose opinion failed to carry the day in Scott
v. Shepherd, was one of the most important jurists in the history of the common law. As the first
holder of the Vinerian Chair of English Law at Oxford University, Blackstone was responsible for
turning the common law into a subject worthy of university study. His Commentaries on the
Laws of England, published in four volumes between 1765 and 1769, aimed to take the
accumulated forms of action in the common law and make sense of them as a body of law
founded on rational principles with coherence and integrity. Given that the common law had
accumulated in ad hoc fashion for over seven hundred years by the time he began to write, this
was no small feat. Blackstone’s effort was so successful that virtually every American law
student for the next century learned the law by reading American editions of the Vinerian
Professor’s great text. And unlike contemporary common law works such as digests and practice
manuals, which functioned even in their time as reference books, the four volumes of Blackstone
remain readable as a classic text to this day.
Does Blackstone’s commitment to reason and the rule of law as a body of principles help
us understand his view in Scott v. Shepherd? To be sure, the great jurist’s distinction between
direct and indirect injuries will be very difficult to maintain in practice. But what mechanisms are
his fellow judges likely to try to invoke in order hold off the problem that Blackstone’s soccer
example identifies? At the heart of Scott v. Shepherd, then, is a deep problem in legal theory.
Law aims to articulate principles of general application that can resolve future disputes. But the
multifariousness of human behavior and social life and the limits of reason make it exceedingly
hard to exclude human discretion from the operation of the law.
3. Whose act? The action on the case was more appealing to Blackstone in Scott v. Shepherd
because of its association with a heightened liability standard of negligence. Plaintiffs in actions
on the case typically only recovered damages if they could show that a defendant’s negligent or
otherwise wrongful act caused the injury in question. This meant that the innocent kicker of a
soccer ball would not be stuck with liability for the damage done by the same soccer ball at some
later time, where the later damage would not have occurred but for the initial innocent kick. Only
a negligent or otherwise wrongful initial act would raise the possibility of the actor being held
liable for such downstream damages.
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