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

Witt & Tani, TCPI 3. Strict Liability and Negligence
that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence,
the plaintiff fails to sustain the burden of proof, and is not entitled to recover.
New trial ordered.
Notes
1. What is a holding? What is the holding of Brown v. Kendall? For that matter, what is a
holding? Judges do not make law simply by speaking and writing. A judge’s opinion, or at least
part of that opinion, becomes law for subsequent cases by virtue of the court’s resolution of the
dispute that is before the court. That is why a case that settles before it is decided by a court does
not produce any law at all. In the formulation of Judge Pierre Leval of the U.S. Court of Appeals
for the Second Circuit, a holding is a “proposition of law” that “explain[s] why the court’s
judgment goes in favor of the winner.” Pierre N. Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N.Y.U. L. REV. 1249, 1256 (2006). Professors Michael Abramowicz and
Maxwell Stearns observe further that it cannot be that holdings are merely those parts of an
opinion necessary (or, as in one influential formulation, “pivotal”) in reaching the decision, since
there is often more than one possible route to a particular resolution. Abramowicz and Stearns
argue therefore that a holding consists of “those propositions along the chosen decisional path or
paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3)
lead to the judgment.” Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L.
REV. 953, 961 (2004).
Using the Leval or Abramowicz/Stearns theories of a holding, we might take the question
about the holding of Brown v. Kendall a step further. The first question is what Justice Shaw held
in Brown v. Kendall as to the relevant liability standard. But the second and underlying question
is whether there was a holding at all!
2. Tort law as industrial subsidy? Setting aside the problem of characterizing the holding of
Brown v. Kendall, it seems clear that Shaw meant to articulate a principle for distinguishing
between the plaintiff and the defendant in accident cases. The principle Shaw identified was the
negligence principle. He moved the liability standard as administered by judges toward
something like a negligence test, holding defendants liable only when they fail to exercise
ordinary or reasonable care—that is, when they act negligently. This negligence standard
generally offers a more favorable approach for defendants than a test that holds them liable even if
they exercise reasonable care, but fail to take the extraordinary care on which earlier cases
sometimes seemed to insist. Why would Shaw have wanted to do this?
Given the historical influence of Shaw’s opinion, a substantial literature has tried to
explain Shaw’s motivations. Harvard professor Morton Horwitz controversially claimed that
Shaw adopted the negligence standard to subsidize industrialization and economic growth at the
expense of poor constituencies. In contrast to the stricter liability standard that preceded it,
Horwitz argues, negligence immunized emerging industries from legal liability absent fault,
placing more of the burden of economic growth on the weakest groups in American society:
groups like farmers and workers. MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW,
1780-1860 97, 99-101 (1977).
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