In twenty-first century American courts, dysfunctional outcomes invariably follow the formalistic application of the most salient doctrinal distinctions. Attempts by legal taxonomists to delineate the boundaries between contract and tort law are especially ineffectual. Still, courts irregularly determine the obtainable remedies for legally cognizable injuries based on the way these capricious taxonomic boundaries are drawn. Doctrinal distinctions that demonstrably operate poorly unfairly persist.
Tellingly, contemporary challenges arising out of a flawed system of classification typified by the tort and contract taxa are not the result of ineluctable progress in the legal system of the United States. To the contrary, these classifications are rooted in competing crosscurrents of legal theory debated both in the United States and England during a period roughly measured from the mid-nineteenth until the early twentieth century (generally, the fin de siècle).
Owing to a burst of intellectual vigor and systemic reform during the fin de siècle, an end might have been achieved to the then-nascent but now familiar taxonomy of legal claims. Instead, since this period, purported doctrinal distinctions between tort and contract theory have become ever more firmly embedded in the American judicial psyche and legal practice.
This Article exposes the role that legal taxonomy plays in contemporary legal scholarship and practice, and then accounts for and laments the product of fateful choices during the fin de siècle — a period of both great progress and regression in the development of the legal system in the United States. A neoteric, rights-based juridical model is then presented as a better alternative to parsing claims and restricting relief based on the fuzzy legal taxa that are prevalent today.