Abstract Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.
{"title":"Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory","authors":"Mark A. Geistfeld","doi":"10.1515/jtl-2021-0027","DOIUrl":"https://doi.org/10.1515/jtl-2021-0027","url":null,"abstract":"Abstract Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"403 - 467"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49251867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In the United States, one startling response to COVID-19 has been a push for so-called “liability shields,” laws modifying tort doctrine so as to largely eliminate tort liability for negligently causing COVID-19. Though not enacted at the federal level, such changes have been adopted in numerous states. This article excavates and articulates the tort theory that lies behind this puzzlingly response to a pandemic. I call the theory “tort deflationism.” Grounded in modern American conservatism and with a doctrinal pedigree dating back to the 1970s, tort deflationism explains and justifies only minimal tort liability, out of deference to non-governmental actors – especially family, church, and business—and suspicion of government competence and power. Other tort theories should reckon with tort deflationism, and I discuss some challenges of doing so. The contest between tort deflationism and other theories speaks to ongoing debates about the legitimacy of law in pluralist democracies. I urge tort theorists to enter these debates and to consider their implications for tort law itself.
{"title":"From Liability Shields to Democratic Theory: What We Need from Tort Theory Now","authors":"H. Feldman","doi":"10.1515/jtl-2021-0034","DOIUrl":"https://doi.org/10.1515/jtl-2021-0034","url":null,"abstract":"Abstract In the United States, one startling response to COVID-19 has been a push for so-called “liability shields,” laws modifying tort doctrine so as to largely eliminate tort liability for negligently causing COVID-19. Though not enacted at the federal level, such changes have been adopted in numerous states. This article excavates and articulates the tort theory that lies behind this puzzlingly response to a pandemic. I call the theory “tort deflationism.” Grounded in modern American conservatism and with a doctrinal pedigree dating back to the 1970s, tort deflationism explains and justifies only minimal tort liability, out of deference to non-governmental actors – especially family, church, and business—and suspicion of government competence and power. Other tort theories should reckon with tort deflationism, and I discuss some challenges of doing so. The contest between tort deflationism and other theories speaks to ongoing debates about the legitimacy of law in pluralist democracies. I urge tort theorists to enter these debates and to consider their implications for tort law itself.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"373 - 401"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47553314","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The capacious and hard-to-confine term Tort challenges observers to identify what it includes and does not include. Offered here to describe tort, the label “categorical hurt” makes reference to two foundational characteristics. “Hurt,” the noun in this phrase, insists that tort plaintiffs bring to court their experience of suffering. Its adjective, used in this article to echo the word Immanuel Kant chose to modify a different noun, “imperative,” means that tort courts hear claims of general rather than exclusively personal interest. To earn a tort remedy, the suffering reported by a hurt plaintiff must be of a kind that other people can experience and understand.
{"title":"Q: What is Tort? A: Categorical Hurt","authors":"Anita Bernstein","doi":"10.1515/jtl-2021-0028","DOIUrl":"https://doi.org/10.1515/jtl-2021-0028","url":null,"abstract":"Abstract The capacious and hard-to-confine term Tort challenges observers to identify what it includes and does not include. Offered here to describe tort, the label “categorical hurt” makes reference to two foundational characteristics. “Hurt,” the noun in this phrase, insists that tort plaintiffs bring to court their experience of suffering. Its adjective, used in this article to echo the word Immanuel Kant chose to modify a different noun, “imperative,” means that tort courts hear claims of general rather than exclusively personal interest. To earn a tort remedy, the suffering reported by a hurt plaintiff must be of a kind that other people can experience and understand.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"53 2","pages":"261 - 278"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41303950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to predict where it may go. We contend that tort theory has experienced two different eras, and that it may well be about to enter a third. In the first era, spanning roughly the first three-quarters of the twentieth century, tort theory faced outward to the world, focusing on issues affecting redress for civil injuries that were being decided in the courts and emerging in American society at large. In the second era, roughly the last 30 to 40 years, tort theory turned inward and focused mostly on itself. The tort theory that has been done during this second era, valuable though it has been, may well have borne most of its scholarly fruit. We may therefore be ready to move into a third era, in which tort theory turns outward again and becomes occupied with the cutting-edge issues of tort law policy and principle that will be generated as the twenty-first century progresses. This Essay chronicles the first era, in which tort theory faced outward, the second era, in which tort theory turned inward, and identifies three issues that we believe may be on the tort theory agenda, when and if tort theory turns outward again. These involve the coordination and systematization of tort with other sources of regulation and compensation; redressing data theft and digital invasions of privacy; and heightened sensitivity to harm associated with sex, gender, and race-related misconduct.
{"title":"The Inward Turn and the Future of Tort Theory","authors":"K. Abraham, George E. White","doi":"10.1515/jtl-2021-0031","DOIUrl":"https://doi.org/10.1515/jtl-2021-0031","url":null,"abstract":"Abstract The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to predict where it may go. We contend that tort theory has experienced two different eras, and that it may well be about to enter a third. In the first era, spanning roughly the first three-quarters of the twentieth century, tort theory faced outward to the world, focusing on issues affecting redress for civil injuries that were being decided in the courts and emerging in American society at large. In the second era, roughly the last 30 to 40 years, tort theory turned inward and focused mostly on itself. The tort theory that has been done during this second era, valuable though it has been, may well have borne most of its scholarly fruit. We may therefore be ready to move into a third era, in which tort theory turns outward again and becomes occupied with the cutting-edge issues of tort law policy and principle that will be generated as the twenty-first century progresses. This Essay chronicles the first era, in which tort theory faced outward, the second era, in which tort theory turned inward, and identifies three issues that we believe may be on the tort theory agenda, when and if tort theory turns outward again. These involve the coordination and systematization of tort with other sources of regulation and compensation; redressing data theft and digital invasions of privacy; and heightened sensitivity to harm associated with sex, gender, and race-related misconduct.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"245 - 259"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44497462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Late twentieth-century tort theory was dominated by scholars who regarded tort law as primarily a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. Tort theorists today better appreciate that this approach obscures crucial respects in which tort law is private law–law that empowers persons who have been wronged to redress the wrongs done to them. But in practice there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms on which both the ‘right’ and the ‘left’ critique modern mass tort litigation. More troublingly, the problem extends beyond the field of torts. Indeed, we contend that the lawyerly loss of feel for distinctions between public law and private law explains the inability of the United States Supreme Court Justices, in Whole Woman’s Health v. Jackson, to capture why S.B. 8–Texas’s radical anti-abortion statute–really is a private attorney general statute and why, as such, it should be subject to preenforcement constitutional review.
摘要二十世纪末的侵权理论主要由学者主导，他们认为侵权法主要是政府用来阻止反社会行为的手段。在这种模式下，侵权原告被塑造成私人检察长，其诉讼促进了安全。如今，侵权理论家们更清楚地认识到，这种方法掩盖了侵权法是私法的关键方面，私法赋予受冤枉的人纠正对他们所犯错误的权利。但在实践中，威慑模式塑造和扭曲侵权法观点的方式仍然没有得到理解，“右翼”和“左翼”对现代大规模侵权诉讼的批评就证明了这一点。更令人不安的是，这个问题超出了侵权行为的范畴。事实上，我们认为，律师们对公法和私法之间的区别失去了感觉，这解释了美国最高法院法官在Whole Women’s Health v.Jackson一案中无法理解为什么s.B.8——德克萨斯州激进的反堕胎法规——真的是一部私人司法部长法规，以及为什么它应该接受强制执行前的宪法审查。
{"title":"Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8","authors":"John C. P. Goldberg, Benjamin c. Zipursky","doi":"10.1515/jtl-2022-0009","DOIUrl":"https://doi.org/10.1515/jtl-2022-0009","url":null,"abstract":"Abstract Late twentieth-century tort theory was dominated by scholars who regarded tort law as primarily a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. Tort theorists today better appreciate that this approach obscures crucial respects in which tort law is private law–law that empowers persons who have been wronged to redress the wrongs done to them. But in practice there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms on which both the ‘right’ and the ‘left’ critique modern mass tort litigation. More troublingly, the problem extends beyond the field of torts. Indeed, we contend that the lawyerly loss of feel for distinctions between public law and private law explains the inability of the United States Supreme Court Justices, in Whole Woman’s Health v. Jackson, to capture why S.B. 8–Texas’s radical anti-abortion statute–really is a private attorney general statute and why, as such, it should be subject to preenforcement constitutional review.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"469 - 491"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43266660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Symposium Issue: The State of Tort Theory","authors":"C. Robinette","doi":"10.1515/jtl-2022-0005","DOIUrl":"https://doi.org/10.1515/jtl-2022-0005","url":null,"abstract":"","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"241 - 243"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41807849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective justice and later under civil recourse. The success of civil recourse depends in part on its ability to explain emerging areas of focus in tort law. One such area is public nuisance, which, despite some setbacks, is viewed by the plaintiffs bar, state actors, and some members of the academy as an effective tool to address significant social problems, such as the opioid crisis. This article asks whether, and how, civil recourse theory can accommodate modern public nuisance law.
{"title":"The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance","authors":"A. Sebok","doi":"10.1515/jtl-2021-0032","DOIUrl":"https://doi.org/10.1515/jtl-2021-0032","url":null,"abstract":"Abstract Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective justice and later under civil recourse. The success of civil recourse depends in part on its ability to explain emerging areas of focus in tort law. One such area is public nuisance, which, despite some setbacks, is viewed by the plaintiffs bar, state actors, and some members of the academy as an effective tool to address significant social problems, such as the opioid crisis. This article asks whether, and how, civil recourse theory can accommodate modern public nuisance law.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"531 - 549"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43697663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.
{"title":"Instrumental Comparative Tort Law","authors":"R. Perry","doi":"10.2139/ssrn.3973401","DOIUrl":"https://doi.org/10.2139/ssrn.3973401","url":null,"abstract":"Abstract This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"493 - 529"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45989006","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Essay gingerly enters the tort theory “wars” that torts scholars have been debating for many decades. Is the essence of tort law instrumentalism in some form, including most notably in providing appropriate incentives to minimize the costs of accidents, as Guido Calabresi normatively proposed and William Landes and Richard Posner descriptively claimed? Or, on the other hand, is tort law simply about the injurer and victim and the just manner for allocating the victim’s loss—blind to any collateral consequences? We address these debates from our perspective as Restatement Reporters, honing in on the question of what role tort theory plays in our work. Our answer is virtually none. There are two independent and sufficient reasons for this conclusion. First, we are deeply skeptical that there is an immanent meta-theory that explains tort law or guides its development. Instead, we think tort law is a hodgepodge, influenced by public policy, culture, administrative concerns, evidentiary lacunae, technological developments, and random events. These eclectic and shifting forces influence what tort law is and how it evolves with the felt needs of any given era. Tort law, in short, is built from the bottom up, not the top down and is far too messy to be the product of intelligent design. Beyond that, even if there were such a force at tort law’s heart, that force would still have little influence on our work. The doctrinal level at which Restatements operate and the case law that fuels the production of Restatements—ground level law—is a disjunction from theory, which operates at 30,000 feet. This disjunction means that the latter is of little assistance when it comes to addressing the quotidian matters important to tort law and Restatements. Whether tort law is entirely instrumental or solely about corrective justice cannot answer the question of whether parents should have immunity from tort suits by their children. The answer to that question must be found in the case law, not in Kant.
{"title":"Tort Theory and Restatements: Of Immanence and Lizard Lips","authors":"N. Engstrom, Michael D. Green","doi":"10.1515/jtl-2022-0003","DOIUrl":"https://doi.org/10.1515/jtl-2022-0003","url":null,"abstract":"Abstract This Essay gingerly enters the tort theory “wars” that torts scholars have been debating for many decades. Is the essence of tort law instrumentalism in some form, including most notably in providing appropriate incentives to minimize the costs of accidents, as Guido Calabresi normatively proposed and William Landes and Richard Posner descriptively claimed? Or, on the other hand, is tort law simply about the injurer and victim and the just manner for allocating the victim’s loss—blind to any collateral consequences? We address these debates from our perspective as Restatement Reporters, honing in on the question of what role tort theory plays in our work. Our answer is virtually none. There are two independent and sufficient reasons for this conclusion. First, we are deeply skeptical that there is an immanent meta-theory that explains tort law or guides its development. Instead, we think tort law is a hodgepodge, influenced by public policy, culture, administrative concerns, evidentiary lacunae, technological developments, and random events. These eclectic and shifting forces influence what tort law is and how it evolves with the felt needs of any given era. Tort law, in short, is built from the bottom up, not the top down and is far too messy to be the product of intelligent design. Beyond that, even if there were such a force at tort law’s heart, that force would still have little influence on our work. The doctrinal level at which Restatements operate and the case law that fuels the production of Restatements—ground level law—is a disjunction from theory, which operates at 30,000 feet. This disjunction means that the latter is of little assistance when it comes to addressing the quotidian matters important to tort law and Restatements. Whether tort law is entirely instrumental or solely about corrective justice cannot answer the question of whether parents should have immunity from tort suits by their children. The answer to that question must be found in the case law, not in Kant.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"333 - 372"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48294514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only “intermediate” justifications for their decisions (such as dignity, fairness, or reasonableness), rather than “foundational” ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as “dignitary” torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all “dignitary” torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.
摘要本文从两个方向探讨了一般性与侵权法问题。首先，当普通法法官为侵权原则提供辩护时，这些辩护原则和政策的普遍性或特殊性的适当程度是多少?其次，当法官识别和完善侵权原则时，原则本身的普遍性或特殊性的适当程度是多少?关于第一个问题，斯蒂芬·a·史密斯(Stephen A. Smith)认为，法官通常只会、也应该援引“中间”理由(如尊严、公平或合理性)，而不是“基本”理由(如功利主义或纠正正义)。史密斯的观点有一定的可取之处:中间原则确实在普通法决策中发挥并且应该发挥突出作用。然而，基本原则可以合法地发挥比史密斯所建议的更重要的作用，特别是如果它们是多元的。中间原则有时过于空洞，无法作为真正的理由。关于第二个问题，斯蒂芬·d·舒格曼(Stephen D. Sugarman)和凯特琳·鲍彻(Caitlin Boucher)提出，许多可能被定性为“尊严”侵权的侵权行为应该合并为一个单一的“统一”侵权行为，即以高度冒犯的方式错误地损害他人尊严的侵权行为。作者似乎认为，法院没有对这些侵权行为之间的差距和任意区分给予足够的重视。然而，他们更为激进的主张，即一种超级侵权行为应该取代所有“尊严”侵权行为，是没有说服力的。像殴打、非法监禁、侵入私人场所和恶意起诉等不同的侵权行为反映了不同的错误，不应被禁止错误和高度冒犯性行为的单一侵权行为所取代。本文所提供的分析来自于《重述三:侵权:对人的故意侵权》中的许多例子，我曾担任该重述三的联合记者或记者。
{"title":"Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?","authors":"K. Simons","doi":"10.2139/ssrn.4006612","DOIUrl":"https://doi.org/10.2139/ssrn.4006612","url":null,"abstract":"Abstract This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only “intermediate” justifications for their decisions (such as dignity, fairness, or reasonableness), rather than “foundational” ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as “dignitary” torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all “dignitary” torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"14 1","pages":"551 - 573"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42306696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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