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The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman
The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman
Faculty Scholarship
The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities 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.
In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …