When a former student offered to let me see his grandfather’s Torts notebook, I was intrigued. The seventy-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938–39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.Because Prosser’s papers likely have been destroyed, Merrifield’s notebook offers a unique “behind the scenes” look at Prosser during a very significant period in his professional development. During 1938–39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser’s article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser’s place in the intellectual history of twentieth-century legal theory. Prosser’s 1938–39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser’s realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law’s most influential thinkers.This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser’s seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.
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