Torts And Rights

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Francoise Witsell

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Aug 3, 2024, 12:43:53 PM8/3/24

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Tort is a branch of private law. It focuses on interpersonalwrongdoing primarily between private persons. Unlike the law ofcontract, tort obligations are not normally entered into voluntarily;unlike the criminal law, the state is not necessarily a party to atort action. Private persons can often contract around the rights andobligations of tort law; those rights and obligations provide thebackground against which other private arrangements can be made.Prominent examples of torts include negligent injury, battery, deceit,and defamation. In each case, the existence of the legal right thathas been violated does not depend on any prior act of the injuredparty. Instead, everyone has rights against these types of conduct onthe part of others. Tort law engages with two of the most fundamentalquestions of morality and social life: how people are permitted totreat each other, and whose problem it is when things go wrong.

Tort law has a central place in this Holmesian shift of focus, notonly because a lawyer would want assistance in advising clients onwhether to settle tort claims, but also for a systematic philosophicalreason. Holmes recognized the clear parallels between the law of tortsand familiar parts of commonsense morality, and wanted to emphasizethe differences. He therefore begins his discussion of tort law bynoting that

Together with the English legal scholar Sir Frederick Pollock, withwhom he corresponded for many decades, Holmes also set a pair ofquestions for tort theory. The first is whether there is a generalprinciple of liability underlying all of tort law or simply amiscellany of different causes of action. The Holmes/Pollock answerwas affirmative: they each argued in their own way that the basis ofliability was causing harm without justification or excuse. As Pollockput it:

All members of a civilised commonwealth are under a general dutytowards their neighbors to do them no hurt without lawful cause orexcuse. The precise extent of the duty, as well as the nature andextent of the recognised exceptions, varies according to the nature ofthe case. (1897: 1)

Holmes and Pollock raised their second question by introducing aclassification of bases for liability, with a distinction betweenwrongs for which liability was strict, wrongs for which liability waspredicated on negligence, and wrongs for which intention was required(Stevens 2019). These classifications had an important role in shapingsubsequent debates, raising questions of both conceptual analysis andnormative justification.

If, for instance, a man is born hasty and awkward, is always havingaccidents and hurting himself or his neighbors, no doubt hiscongenital defects will be allowed for in the courts of heaven, buthis slips are no less troublesome to his neighbors than if they sprangfrom guilty neglect. (1881: 108)

Holmes is not always explicit about whether he is proposing to explainthe law as he finds it or to revise it; he suggests that thetraditional law may be inadequate to its tasks of providing for safetyin an industrialized world:

Analyzed in economic terms, the amount of risk that is acceptable insociety should ideally be determined in the same way that everyquestion about the creation of a cost or benefit should ideally bedetermined, that is, through efficient market transactions. In aperfectly competitive market, with complete information and notransaction costs, parties could be expected to negotiate, anddetermine the terms on which they exposed each other to risks (Posner1983). As Ronald Coase puts it in one of the foundational texts of theeconomic analysis of law (1960), in conditions of perfect competition,parties concerned to advance their interests would always bargainaround legal rules to reach an efficient result. A rational enterprisewill be indifferent between engaging in a profitable activity andreceiving equivalent payment to refrain from engaging in it. Withouttransaction costs, legal rules would make no difference to theallocation of resources; the only effect of the legal rule would be todetermine the direction of payments. Coase acknowledges that we livein a world in which transaction costs make bargaining infeasible. Thecase of accidental injury illustrates this particularly starkly.Nobody is in a position to negotiate with everyone who might beinjured through the side effects of their driving, cycling, or otheractivities, or through products they produce; conversely, nobody couldbe in a position to negotiate with everyone who potentially exposesthem to such risks. Thus, there is a problem which economists identifyas market failure: the parties are unable to reach a mutuallybeneficial arrangement. Economic analysis recommends the adoption oflegal rules that will provide people with incentives to approximatethe outcome that would have been achieved by market transactions withfull information and no transaction costs.

Economic analysts have responded to the corrective justice critique bysuggesting that courts engage in binary adjudication for a variety ofpragmatic reasons, including historical accidents and the beneficialincentive effects of putting litigation in the hands of people withfinancial stakes in its outcome. In addition, they point to the factthat binary adjudication is a familiar feature of other legal areaswhere no private dispute is at issue, most notably US antitrustlaw.

the reasons why one must pay for the losses that one occasions are thevery same reasons why one must not occasion those losses in the firstplace, when it is true that one must not occasion them. (2011: 34)

One prominent objection to civil recourse theory, made both bydefenders of corrective justice accounts and defenders of economicanalysis, is that the principle of civil recourse is true but trivial.The founders of the economic analysis of tort law, Richard Posner andGuido Calabresi, both of whom were at the time federal appellatejudges in the United States, have argued that the principle of civilrecourse is empty, and could provide no possible guidance to any judgeattempting to decide a case. Instead, other factors, includinginstrumental ones, must be introduced in order to explain theresolution of the case and the measure of damages; that it all takesplace before a court at the initiative of the plaintiff isinstitutionally true but analytically insignificant for Posner (2013)and Calabresi (2013). More generally, the entitlement of someone toclaim a remedy from the person who has wronged them is a genericfeature of private legal relationships, and so fails to shed anydistinctive light on tort law. Instead, just as contract law providesplaintiffs with remedies because they have been wronged, howeverimperfectly those remedies might repair those wrongs, so too does thelaw of tort. That legal structure does not, however, lead to theconclusion that contract remedies have some point other than toenforce the contractual right that was violated, however imperfectthat remedy may be as a substitute. So, too, in the case of tort law,any obligation that the state has to provide a forum and avenue ofrecourse does not show that the principle of recourse is anythingother than the enforcement of the right that was violated. The claimthat there is no legal duty to pay damages unless the plaintiff bringssuit has also been disputed (Steel & Stevens 2020).

Causation, which is a further element of the tort of negligence, hasfigured prominently in recent debates. Some of these debates arenormative. They concern whether causation is relevant to liability,because the causal upshots of careless behavior are beyond the controlof the person who is careless. This, too, is a debate prefigured inHolmes, who wrote

When a man commits an assault and battery with a pistol, his only actis to contract the muscles of his arm and forefinger in a certain way,but it is the delight of elementary writers to point out what a vastseries of physical changes must take place before the harm is done.(1881: 91)

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This work, widely relied upon and often cited by the courts, offers comprehensive and concise coverage of the law of torts, with scholarly and analytical discussion of particular rules. These volumes constitute a revision of the original Restatement of Torts and supersede the original work.

Reporters:
William L. Prosser, University of California, Hastings College of Law
John W. Wade, Vanderbilt University School of Law
Associate Reporter for Chapter 41:
Frank J. Trelease, University of the Pacific, McGeorge School of Law

The coverage of Volume 1 includes intentional invasions of interests in personality; privilege arising from consent to intended invasions of interests of personality; defenses of person, land, and chattels-recaption; arrest and prevention of crime; military orders, discipline, and protection of others; invasions of the interest in the exclusive possession of land and its physical condition (trespass on land); privileged entries on land; intentional invasions of interests in the present and future possession of chattels; privileges intentionally to invade interests in present and future possession of chattels; and causal relation necessary to liability for intentional invasions of interests of personality, land, and chattels.