Introductory Outline
I. What is a Tort? (“wrong”)
- Tort v. Torte
- Tort v. Crime/Property (make them whole v. “don’t do that!”)
- Tort v. Breach of Contract (social norm - act decently v. promise/status - you promised/accepted this role)
- Remedies:
- Tort v. Property (damages v. injunctive remedies)
- Tort v. Criminal (damages to injured person; vindicated by victim v. fine/punishment to or from state, in US vindicated only by state)
- Tort v. First Party Insurance (recovery from person causing the injury, requiring finding of fault and causation, vs. recovery from a statistical fund for accidents)
II. Tort Regulation
- After-the-fact (“general deterrence”) v. Regulatory (specific deterrence). Tort generally gives no specific directions.
- Individualized v. routinized adjudication
- Discretion v. rules (judiciary v. bureaucracy)
- Principles v. rules
- Legal v. Market
- 3d party recovery v. 1st Party Insurance
- Court made v. legislation
- Jury v. Judge
- Settlement v. litigation
III. Tort Goals & Principles
- Make the injured whole
- Individualized:
- Clean up your mess
- You broke it, you pay for it
- Kiss the booboo
- Social:
- Someone is hurt; help them!
- Prevent unjust enrichment
- You took something, give it back
- Spread Costs
- Why should one person pay for the benefit of all? (Eminent domain)
- Insurance (smoothing variance)
- Protect people’s property and persons
- Your right to swing your fist ends before my nose
- Reduce accidents
- Be careful!
- Incentives/plausibility of deterrence (car accidents)
- Can you reduce accidents too much??
- Minimizing the sum of the cost of accidents plus prevention
- Increase efficiency
- Accurate pricing: accidents as externalities
- Free loading/problem of the commons
- Internalization of the costs of production
- Subsidy of activity
- Promote production (why tax victims to support a social good?)
- Social justice
- Some accidents are a fact of life, but an unfair one. Shouldn’t a fair society mitigate their effects? Is an accident a kind of tax? Should it be borne by a single person?
- Some accidents are preventable. Shouldn’t we prevent them? Or if not, at least mitigate their effects?
IV. Tort Defenses (the flip side of III)
- Causation based:
- I didn’t do it
- There were many causes and I wasn’t an important one
- Fault based:
- I didn’t do it
- The victim should have been more careful
- I couldn’t help it/it wasn’t my fault
- Sometimes bad things just happen
- Can’t make omelettes without breaking eggs: the damage is necessary for the gain (but why should x be allowed to break y’s eggs for x’s omelette?)
- Economic:
- It is too expensive to prevent (but why should the victim pay rather than the person profiting/saving the money?)
- Someone else could prevent it more easily than I can.
V. Tort Remedies
- Damages not injunction
- Damages v. insurance
- Damages v. social compensation (SSD; Worker’s Comp)
- Consequential damages v. contractual expectation damages
VI. Some Tort Issues
- Corrective justice (restoring the status quo ante) v. Distributive justice (making the world a fairer place, e.g., by making the worst off better off)
- Prevention/deterrence vs. cleaning up – what is the right number of accidents to have?
- Does Torts deter? Over deter?
- Economics:
- Are torts externalities that mar the pricing system?
- Are torts uncompensated, nonconsensual takings, a form of slavery or theft?
- Is tort law a form of extortion allowing the unproductive to tax the productive? Predictibility – pricing v. avoidance.
- Is there a right number of accidents?
- Fault - what is the significance of “I didn’t mean to” or “I couldn’t have helped it” or “it wasn’t my fault”
- Causation: Who did it anyway: responsibility in a moral sense and a physical sense.
- Defenses:
- It’s not my fault: in two senses: causation v responsibility
- Strict liability v. Fault-based
- Action/Inaction distinction: when are you responsible for something you could have prevented?
- Can Judges do justice?
- Predictability
- Jury v. judge
- common law v. statute
- principles v. rules
- rule of men v. rule of laws
- What makes rulings predictable?
- Can words restrain?
- If damages are arbitrary, is it better to leave the arbitrariness to juries, judges or legislatures?
- Cost of adjudication
- insurance alternatives
- no-fault alternatives
- Coase:
- What causes what?
- Irrelevance theorem-does the law matter?