Document Type



The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth century. In fact, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities by the turn of the twentieth century, after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule. Statistical anaylsis demonstrates counterintuitively that judges elected to relatively long terms were far more likely to adopt strict liability in the wake of disasters (and public fears) than judges elected to shorter terms. Some of these judges never expected to face another election again, but even without direct political pressure, they were the most responsive group of judges in adopting Rylands after the floods. This article suggests that the state bench was less influenced by the pressures of upcoming elections, and more by the selection effect of past elections and their effect on judges’ psychology. By using archival evidence, this Article demonstrates that judicial elections were hotly competitive in many states, with some judges campaigned aggressively. First, these elections created a populist filter: Some elite professional jurists (who were more formalistic by training and insulated from public opinion) were filtered out of the partisan political process, while lawyer-politicians (who were trained to be responsive to the public, rather than to doctrinal consistency) with party connections were filtered in. Second, elected judges then conceived of their legitimacy as being democratically accountable – even if they never faced another election. I suggest their role fidelity as elected judges led them to perceive public opinion as an important factor in their decisions. Even with the filter effect and the role fidelity, judges elected to short terms would still face the reality of “fear and favor,” due to special interests and partisan renomination politics. On the other hand, elected judges with more job security could be more faithful to role (hence, “role fidelity”) and to public opinion. In the context of strict liability for industrial activities, special interests and partisan deal-making cut strongly in one direction, while public fears after industrial disasters cut the other. Long terms allowed judges to weigh public opinion over special interests. The article offers some thoughts about this era’s chaotic and politicized doctrinal turns and its impact on the shape of American tort law and the direction of American legal thought in the twentieth century, and then concludes with some priorities for judicial reform based upon this historical episode.

Date of Authorship for this Version

December 2007