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One way to understand tort law is as a functional response to the social problem of accidental personal injury. That puts the negligence action at the center, and emphasizes the doctrinal choice between negligence and strict liability, while downplaying the intentional torts and the torts that do not involve physical injury. It also foregrounds the policy choice between tort and other means of dealing with accidents. This functional treatment is not uncontroversial today, but it is certainly orthodox. Here I propose to bring back into view some neglected aspects of the intellectual origins of the accident-centered approach to tort law. When torts was emerging as an important doctrinal category in the common-law world during the late nineteenth century, the early commentator who did the most to organize it around the problem of accidental injury was the young Oliver Wendell Holmes, Jr. The influential slant he gave to the subject turns out to have resulted from his struggle with doubts, surprising and possibly instructive to us, about whether torts was a viable legal category at all. Neither Holmes' doubts about torts nor the theory with which he resolved them had much to do with his views about proper social policy toward industrial accidents. He was mainly responding to the inner dynamics of a juristic debate about the taxonomic arrangement of the substantive law, a debate that had been triggered by the legislative abolition of the common-law forms of action. Jurists drawing on conceptual traditions inherited from Roman law favored adopting tort as a basic category, while those influenced by the analytical jurisprudence of Bentham and Austin pressed the other way. After first taking the Bentham-Austin side, Holmes dis- covered that centering tort law around the problem of accidents could justify its recognition as an important subject after all. Coincidentally, the burst of personal injury litigation that accompanied the growth of railroads and factories in the late nineteenth century made Holmes' ...

American liberals believe that both civil liberties and civil rights are harmonious aspects of a basic commitment to human rights. But recently these two clusters of values have seemed increasingly to conflict – as, for example, with the feminist claim that the legal toleration of pornography, long a goal sought by civil libertarians, actually violates civil rights as a form of sex discrimination.Here I propose an interpretation of the conflict of civil rights and civil liberties in its latest manifestation: the controversy over how to treat discriminatory verbal harassment on American campuses. I was involved with the controversy in a practical way at Stanford, where I helped draft a harassment regulation that was recently adopted by the university.Like the pornography issue, the harassment problem illustrates the element of paradox in the conflict of civil-liberties and civil-rights perspectives or mentalities. This problem does not simply trigger familiar disagreements between liberals of a classical or libertarian orientation as against those of a welfare state or social democratic one – though it does sometimes do that. In my experience, the issue also has the power to appear to a single person in different shapes and suggest different solutions as it oscillates between being framed in civil-liberties and in civil-rights terms. At the same time, however, it remains recognizably the same problem. It is thus a very practical and political example of the kind of tension noted by Wittgenstein in the aphorism that heads this essay – a puzzle of interpretive framing, of "seeing-as."