A Torts Course for the Actually Existing World

John Fabian Witt –

The torts classroom is like a dystopian historical fantasy.

Or maybe a kind of morbid historical science fiction. Students and teachers gather to rehearse time-honored rituals around the Great Cases of human tragedy: Scott v. Shephard, Brown v. Kendall, Rylands v. Fletcher, Vosburg v. Putney, Leroy Fibre v. Chicago, Milwaukee, & St. Paul Railway, MacPherson v. Buick, Murphy v. Steeplechase Amusement Co., Palsgraf v. Long Island Railroad, and more. The cases tend to be old. They tend to involve railroads. We conjure up a bygone world on the rails or at old-school amusement parks, in coal mines or at small-town markets. We conjure a world of judges, juries and appellate opinions, too. But in the actual world outside the torts classroom, railroads have been in decline for a half-century and more. Amusement parks, too, though that’s a story for a different day. More importantly here: so have judges, juries, and appellate opinions. The spread of waivers, the rise of arbitration, the disappearance of the trial, and the prevalence of settlement have made the Great Cases almost literally things of the past.

What would it mean to bring the torts class into the twenty-first-century and connect it to actually existing problems?

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American Tort Law Tells Us How It Really Feels About Law and Economics

Anita Bernstein —

Funny thing about the intersection of tort and law and economics. For decades this school of thought has been ascendant in scholarship and intellectual understandings of this field, as it has throughout private law generally. No one can teach or write competently about torts without giving thought to law and economics fundamentals like cost-benefit analysis, cost as a social problem, the cheapest cost avoider, default rules, incentives, and wealth maximization.  On the one hand.

On the other hand, American tort law as practiced will stick a thumb in the eye of law and economics. Rather than defer to familiar microeconomics tenets taught in classrooms and quoted for truth in law reviews, it often refuses to learn the curriculum, disrupts order, and even refutes a few basics by not cooperating with their premises. It is worth cataloguing a few examples of these resistances:

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Torts: A Law and Political Economy CounterSyllabus

This syllabus is, in conjunction with the framing post on the Law & Political Economy Blog, a starting point for understanding the law and political economy approach to torts. The initial readings introduce both the law and economics perspective and the competing law and political economy perspective on tort. Subsequent portions of the syllabus use existing literature to apply the law and political economy perspective to concepts featured in tort classes, such as injury, proximate cause, and negligence. Given the newness of the law and political economy perspective, this syllabus is a work-in-progress: email any suggested readings to Conor Dwyer Reynolds at conor.reynolds@yale.edu. Download the full syllabus here.

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Rules of Power & Wrongs: A Law & Political Economy Approach to Tort Law

Conor Dwyer Reynolds —

The law and political economy perspective is defined by its focus on power, the ability to control and change things (especially people). From the vantage point of law and political economy, courts, markets, legislatures, and all other institutions can and must be assessed in terms of how they create and distribute power. Because power exists within and among people, the function of an institution cannot be grasped by simply looking at its formal structure, the words that define its constitutive rules. This is why, as Michael A. Wilkinson and Hjalte Lokdam have noted, the law and political economy perspective demands that institutions be seen through “a historical, conceptual and interdisciplinary lens.”

That lens may help students running through the confusing maze that is many first-year torts classes. Tort law is made up of a hodgepodge of liability rules, running from the apparently criminal (false imprisonment) to the vague (nuisance) to the obscure (abnormally dangerous activity) to a dog’s name with a t on the front (trover). The judicial opinions assigned to illuminate these rules are often written in dense, arcane legalese. If students manage to distill a judge’s reasoning from these opinions, what they often discover are idiosyncratic justifications that do not seem to hang together as a cohesive, intelligible whole.

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