48 WilliamW. Fisher III to the lessee of a nearby mine when the water in the reservoir burst through an abandoned mine shaft (of which the builder was unaware) and flooded the lessee’s property/^ The holding of the case would seemto be inconsistent with the orthodox understanding of the trend of tort law in England (and the United States) during the nineteenth century — viz., toward ever more general application of the negligence principle (the principle that there shall be no ability in the absence of fault). The way that Rylands conventionally has long been reconciled with (and indeed used to support) the orthodox account has been to interpret the case as limited to circumstances in which the defendant was engaged in “ultrahazardous activity.” In her manuscript, Dalton painstakingly explicates the opinions of the six judges who heard the appeal, showing that only one of the six forthrightly advanced a vision of tort liability consistent with the negligence principle, while three adhered to a rival “activitybased vision of liability,” and two clung to an older approach that sought to determine tort defendants’ liability by reference to the deteriorating commonlawforms of action. She goes on to show that the positions taken by the judges were not anomalous.^® The net effect of her interpretation of the case is to undermine the traditional history of tort law in two respects: to show that the influence of the negligence principle was not so strong in 1868 as is usually supposed, and to show that its ultimate triumph was not so foreordained as is usually supposed. In the manuscript itself, Dalton does not connect her argument to any general methodology, but the fact that in an earlier nonhistorical essay she had defended and applied a forthrightly postmodern theory of interpretation^’ suggests that her deliberately subversive reading of Rylands is indeed grounded in a variant of Textualism. In short, a small group of legal historians have begun to deploy arguments that incorporate portions of the textualist style of intellectual history, but no one work has yet exploited the full potential of the method. liD. The application to legal history of New Historicism has thus far been even more limited. Only two essays - both by Hendrik Hartog - conform closely to that methodology. In the first, Hartog examines the career and writings of one Elizabeth Packard, a nineteenth-century reformer who briefly was involuntarily confined to an institution by her husband (on the ground that her resistance to his authority was evidence of insanity) and who later devoted herRylands v. Fletcher, L. R., 3 H.L. 330 (1868). Thus, the three judges who sought to justify their votes on the based of the “activity-based vision” were able to invoke and make sense of a larger portion of the confused bodv of extant English tort law that the one judge who relied on the negligence principle. Clare Dalton, “An Essay in the Deconstruction of Contract Doctrine,” Yale Lasi' Journal 98 (1985): 997.
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