Tort as Intake Fearn, Legal AI, and the Institutional Development of the Common Law

This working paper develops the concept of tort law as an institutional intake mechanism within the common law. Using Fearn v Board of Trustees of the Tate Gallery as its central example, it argues that the significance of Fearn lies not only in the recognition that sustained visual intrusion may constitute private nuisance, but in the way the common law received a new factual configuration and re-characterized it through judicial judgment. The paper situates this process within a broader account of common law development as institutional development: courts receive new social facts, classify their legally salient features, and decide whether those facts should be absorbed into existing doctrine, limited, redirected to neighbouring legal fields, or left to legislation and regulation. The paper also uses legal AI as a contemporary institutional pressure point. Legal AI can accelerate retrieval, summarisation, comparison, and drafting, but it cannot determine how a new social fact should enter law or whether existing doctrine should move. The argument therefore distinguishes legal preparation from institutional judgment. It further considers how capital investment in legal AI operates as a form of institutional power, affecting legal visibility, access, and the distribution of preparatory advantage. The paper concludes that the future of the common law depends not on retrieving the past more efficiently, but on preserving the institutional capacity to receive, classify, and judge new social facts as law moves forward.