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Yale Law School




Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas against the risks of industrialization.12 Second, courts adopted or rejected Rylands partially in response to business cycles: The phase of rejections in the 1870s loosely corresponded to the depression of the 1870s, when courts would have been most eager to subsidize industry, and the subsequent industrial boom in the 1880s and early 1890s corresponded with the wave of acceptances. 13 However, this economic link is undermined by a closer examination of the timing of these cycles and the patterns of rejection and acceptance. The initial rejections occurred before the onset of depression in the 1870s, states generally resisted Rylands for most of the 1880s boom, and Rylands continued to prevail during the depression of the mid-1890s. In terms of politics, the adoption of Rylands corresponded with the rise of populism and an emerging legislative consensus to begin regulating industry, most prominently in the Sherman Antitrust Act of 1890.14 However, the influence of populism is also questionable, because Rylands fared better in Republican states than in the more populist states. Each of these forces played an underlying role in Rylands's adoption, but this Note demonstrates that these broader economic, social, and political trends are flawed and insufficient explanations. As a result, these factors are more accurately described as background conditions merely setting the stage, rather than as the direct causes of the adoption.

Finally, and most importantly, Part III suggests the direct cause by connecting a series of bursting reservoirs and floods in the 1880s and 1890s to a decisive breakthrough of adoptions. In his study of Rylands in its English context, A.W. Brian Simpson persuasively argues that Rylands was the product of British reservoir accidents in 1853 and 1864.15 Similarly tragic disasters occurred in California and Pennsylvania in the 1880s, with similar legal results. After a series of powerful floods and a long political and legal battle over destructive hydraulic gold-mining techniques, California adopted Rylands in 1886. In 1889, an artificial recreational lake owned by a club of the wealthy elite (including business titans Andrew Carnegie and Andrew Mellon) burst through a poorly built dam, destroying Johnstown, Pennsylvania, and killing 2000 people. The nation's media and courts focused intently on the Johnstown Flood, and perceived, mostly inaccurately, that the fault doctrine prevented recovery through the tort system. Two months after the Flood, one of the most influential law publications in the country, the American Law Review, focused on the tragedy and argued that the fault doctrine unjustly prevented recovery in such cases. The Review concluded that courts should adopt Rylands, rather than the flawed and abuse-prone fault doctrine. Thereafter, state courts began adopting Rylands for a wide array of unnatural activities. Whereas Simpson contended that Rylands's rule was anomalous and applied to only a narrow set of cases, American state courts applied Rylands expansively across a wide spectrum of industrial and nonindustrial problems. In these courts, the bursting reservoir was not treated as legally unique, but as part of a broader problem of industrial age hazards.'16 Perhaps the most surprising part of this trend is that three of the states most widely recognized for their rejection of Rylands-New York, New Jersey, and Pennsylvania-reversed their stance on Rylands in the 1890s, soon after the Johnstown Flood.

The story of Rylands's acceptance offers a new perspective on the history of strict liability and illustrates the responsiveness of state courts to industrial accidents and popular fears, which this Note discusses in Part IV. While American courts initially subsidized the industrial revolution,17 the late nineteenth century's rapid urbanization, incredible economic success, and political reform set the stage for broad legal changes, but these forces were insufficient. Ultimately, a series of terrifying experiences with the revolution's darker side made the industrial age's risks more salient and triggered a wide imposition of strict liability. These dramatic events, combined with broad social changes, seem to have tapped into an inchoate notion of the "cheapest cost avoider,"'" though the courts did not yet articulate this understanding in any explicit way. This account also sheds light on the errors of the "legal science" scholars of the early twentieth century, who over-conceptualized doctrine, as well as those of more contemporary legal historians and constitutional scholars, who have over-conceptualized historical eras. Finally, federal courts generally ignored Rylands over this period.19 This Note offers this discrepancy as an example of the different dynamics of the two judicial systems, and of the significance of Erie Railroad v. Tompkins20 in bringing the federal courts back into line with state common law.

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