In Memoriam: Page Keeton, Torts Scholar

Article excerpt

Page Keeton never published an article in the Harvard Law Review or the Yale Law Journal. Most of his work appeared in the Texas Law Review' (the majority at a time when TLR had no claim to national prominence) or in even more modest venues such as the Southwestern Law Journal' and the South Texas Law Journal.3 He never wrote a pathbreaking book; he wrote casebooks and hornbooks. Yet he was the "King of Torts," one of the most influential torts scholars of the century. What made him so influential?

He wrote a great deal. By the time he finished law school he had written six law review notes,4 on subjects ranging from mortgages to jury misconduct. As a young faculty member, he was not especially prolificeight articles in ten years-but he was very focused. He wrote on torts, and he covered the waterfront of tort law as it existed in the 1930s-fraud, nuisance, negligence, assumption of the risk, and contributory negligence. Piece by piece, he mastered the law of torts. These early articles betray no youthful arrogance, no superficial wisdom, no glib generalizations. Page Keeton was no dilettante. From the beginning, his work had the air of authority that comes not from an author's credentials or a publisher's prestige, but from the work itself-from meticulous research, careful analysis, and thorough explication.

Remarkably, Page produced more scholarship as a dean than he had as a professor. Each day he arrived at the office no later than 6 a.m., and in the morning quiet he wrote. The crises, ceremonies, meetings, and appointments that lay in store for the dean had to wait; until 9 o'clock, he allowed nothing to intrude upon his writing time. He produced four casebooks and dozens of articles while he was dean at Texas. During this period he also was president of the Association of American Law Schools, head of the penal code revision project for the State of Texas, an adviser for the Second Restatement of Torts, a community activist in civil rights matters, and one of the most successful deans in the history of legal education.

After he retired as dean his counsel and leadership were in great demand. He chaired three of the most politically charged endeavors of the era in Texas: the Constitutional Revision Commission, the Medical Malpractice Study Commission, and the Ethics Advisory Commission. He also became a practicing lawyer for the first time in his life, a role he relished. But he remained a scholar first. During this period he wrote fifteen more law review articles and, with others, produced three more casebooks and revised William Prosser's immensely popular torts hornbook.

Keeton was revered by his faculty and respected by the scholarly world because he talked the talk and walked the walk. In the face of his example, no faculty member could claim to be too busy to write. Throughout his career, he engaged the issues that were at the cutting edge of tort law. In the 1960s, products liability was the major area of growth and debate in torts, and Keeton was at the forefront. During that decade he published nine law review articles that helped shape the law of products liability in its formative stages. He later produced, with others, two casebooks on products liability.

In the 1970s he turned his attention to defamation, where the Supreme Court had begun overthrowing centuries of established tort law. Upon retirement as dean he took a sabbatical in England, where he immersed himself in both the English and American law of defamation. Drawing upon the traditions and practices of both countries, he proposed a reform that replaced dozens of arcane tort rules and several of the new constitutional modifications with a simple three-issue analysis applicable to all libel and slander cases.5 The Supreme Court a few years later adopted one element of his proposal,6 and it is safe to say that the law of defamation would be more satisfactory if it had adopted the proposal in toto. …