The King of Torts Really Did Rule

–From Cullen McVoy, Hastings College of Law, Date of event: 1969

In 1969, my first year at Hastings College of the Law in San Francisco, I had the privilege of studying torts under the renowned William Prosser, known as the “King of Torts.” He was getting on in years, and could be seen popping his nitro-glycerine heart medication before class. But he got himself to work every day, driving a bright red Mercedes sedan across the Bay Bridge, commenting that the risks involved in that trip exceeded most of those he discussed in class. He was a great teacher–vital and animated. You could feel his deep love of the law, and life-long commitment to the development of its principles.

[McClurg note: For laypersons, Prosser, who died in 1972, was the main author of the most widely used Torts casebook in law schools.]

Prosser taught that tort principles had to be carefully crafted to balance two objectives: They had to be broad enough to compensate the deserving, but narrow enough to avoid a “flood of litigation.” He often spoke of this “flood of litigation” in dark tones that made it sound like the end of the world as we know it.

Hastings followed the rule that in the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. This being my first year, I tried to keep a low profile, and seldom asked a question in class. But this “flood of litigation” captured my imagination, and one day I got up the courage to raise my hand and ask, “Professor Prosser, has this ‘flood of litigation’ that you are so concerned about ever actually happened?”

His response was very long and involved, and I cannot claim to remember or understand all of it. But in the end the answer seemed to be no, it had not happened, at least not to any significant extent. Having surrendered my anonymity and survived, I pushed the question a little further, “Is there any particular reason why not?”

Prosser was not known for his humility. The word at school was “Prosser thinks he’s God, and he may be right.” His answer this time, in so many words, was that it hadn’t happened because he was guiding the courts to make sure it didn’t happen. Astounding as this may sound, he may have been right.

McClurg note. Bless Dean Prosser, one of my all-time heroes. Most people aren’t aware that Prosser was one of the earliest, and funniest, legal humorists. His classic piece, “Needleman On Mortgages,” about a practical joke played on an obsessive law student in search of the ultimate (and nonexistent) law school study aid, is really funny.  It made the cut for one of the top 25 funniest law journal articles in my co-edited book Amicus Humoriae: An Anthology of Legal Humor.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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