It is my great pleasure to pen a few words in honor of my friend and fellow laborer in the torts vineyard, Professor David Fischer. Professor Fischer has been an intellectual force in the modem development of tort law. He has made us think hard about the implications of tort rules. He is in the intellectual tradition of a splitter, and not a lumper, in his scholarship., Most of scholarship in modem tort law falls into the "lumper" camp. It is scholarship that looks at tort rules as encapsulating wider models that serve certain instrumental ends, or as part of a non-consequential system of norms; for example, law and economics has taken tort rules to reflect a system of rules that serve efficiency. Others view the rules as part of a system of private law that instantiates corrective justice. Contrary rules are diminished and common themes emphasized. Even when discussing discrete aspects of tort law, most modem scholars are lumpers in applying broad theoretical frameworks to fit those aspects. The most talked of aspect has been the duty concept in negligence. While the debate can be traced to the Palsgraf case, it has been given new life by the scholarship of Keating, Goldberg and Zipursky. The issue that separates these scholars derives from their views about the function of tort liability. David Fischer is a splitter. He takes present or evolving doctrines and puts them under a powerful analytical microscope for examination. In so doing, he reveals differences, internal flaws, paradoxes and problems, and revels in the complexity. David Fischer, although not without strong views about the theoretical groundings of tort law, proposes no meta-theories. Instead, he does the hard work on the inside that, in the end, uncovers the problems and dilemmas for courts as they go about their business of ascribing responsibility for wrongful acts. He is the fox of tort law.
David F. Partlett,
Foreword: David Fischer, The Fox(a),
73 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol73/iss2/2