Just two months after the Johnstown Flood, a note in the American Law Review discussed the horrors of the Johnstown Flood, and then focused on the courts' tendency to abuse fault rules and on the superiority of Rylands v. Fletcher.(261) The American Law Review was a bimonthly publication regarded as "the most influential legal periodical of the nineteenth century,"(262) and its notes were not student pieces, but were legal comments written by perhaps the most "distinguished ...
(4.) See WILLIAM PROSSER, The Principle of Rylands v. Fletcher, in SELECTED TOPICS ON THE LAW OF TORTS 135, 135 (1953).
For in-depth, insightful discussions of Holmes and his ideas about Rylands and liability in general, see DAVID ROSENBERG, HIDDEN HOLMES (1995); and Clare Dalton, Losing History: Tort Liability in the Nineteenth Century and the Case of Rylands v. Fletcher 29-73 (unpublished manuscript, on file with The Yale Law Journal), which focuses mainly on the British perspective on Rylands.
PHILLIPS ET AL., TORT LAW: CASES, MATERIALS, PROBLEMS 660-61 (1991) (mentioning "frequent attacks on the rule in Rylands v. Fletcher by courts of the United States," and citing a 1982 case recognizing the national acceptance of Rylands); RICHARD A.
For other interpretations, see ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY 105-10 (1923); Francis Bohlen, The Rule in Rylands v. Fletcher (pts.
Rosenberg, to make his case, has to argue that Holmes's reasoning was not incompatible with his acceptance of certain forms of strict liability -- in particular, liability under the rule in Rylands v. Fletcher, as well as liability, for example, for cattle trespass.
Holmes's writings contain no extended discussion of Rylands v. Fletcher, nor of strict liability.
In the next paragraph, Holmes went on to say "Another example may perhaps be found in the shape which has been given in modern times to the liability for animals, and in the derivative principle of Rylands v. Fletcher."(50) The "policy" is then explained: "[A]s there is a limit to the nicety of inquiry which is possible in a trial, it may be considered that the safest way to secure care is to throw the risk upon the person who decides what precautions shall be taken."(51) Holmes provided no explanation why this reasoning should not apply generally in the law.
Holmes had first discussed Rylands v. Fletcher in The Theory of Torts.(53) In that article, he rationalized the decision by saying that liability was imposed "on the principle that it is politic to make those who go into extra-hazardous employments take the risk on their own shoulders."(54) This discussion preceded Holmes's claim that there exists a common ground for all liability in tort law.
In Lecture IV, Holmes again discussed cases of strict liability, and Rylands v. Fletcher in particular.(55) He then set out an obscurely different rationalization which emphasized the importance of the initial choice to engage in the activity:
As an example of when the rule applies, the court in the Rylands v. Fletcher
case used the situation in which a defendant landowner brings water onto his property for a non-natural use and the water subsequently escapes.