Prosser and His Influence

Abstract

This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions. We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.