[Note: This posting is a continuation of a report on
the development of a civics unit of study.
This unit is directing students to formulate informed positions on a
governmental topic, ground rules overseeing tort law. It is being developed in real time. Writer wants to identify the basic source of
information, the Great Course’s course, Law
School for Everyone.[1]]
This posting begins
the substantive reporting on the development of a unit of study, suitable for a
civics course or American government course.
That unit, at this point, features tort law. In addition, the approach to this topic will
be to address it as a national concern.
As
such, it would be situated toward the end of the course but treated as a unit
that looks at one the three main branches of government, the judiciary. Therefore, this unit can reasonably expect
students to know the major goals and aims the course is trying to meet.
Among
those goals and aims is to impart a mode of behavior responsible citizens can
employ when considering a governmental/political issue or problem. The elements of that mode include an
appreciation of and the motivation to attain relevant historical knowledge
concerning the issue/problem at hand, a disposition to engage in effective
dialogue with other citizens to address the issue or problem, and a willingness
to participate in citizenry action that is meant to relieve or solve the
issue/problem.
Summarily,
one can describe that mode as one that enhances and demonstrates the societal
qualities of social capital and civic humanism – qualities that reflect
federalist values. Of specific concern
regarding this unit is the federalist value of justice. A federalist moral code identifies justice as
one of that code’s key instrumental values; only superseded by the code’s trump
value, societal welfare.
As
the last posting stated, tort law involves court action dedicated to settle
claims emanating from situations where one party causes harm to another
party. While that basic descriptor
sounds simple, in real life, torts can easily become complex. Relatively simple cases demonstrate how
complex tort law can be.
Here
is such a case. A driver pulls up to a
golf course’s parking lot. The driver is
driving an SUV and due to his/her heighten view, does see a beer can that was
left on the parking space the driver chooses and he/she runs over the can. Given how the tire hits the can (that is cut
open with a sharp exposed edge), the can causes a slice on the bottom of the
tire.
The
driver hears the contact, but does not see, upon inspection any damage. Low and behold, a few hours later the tire is
flat. The charge to make the driver
whole – acquiring a tire that is comparable to what he/she had before the
contact – results in a bill of $200. Who
should pay for that bill? The driver,
the unidentified person who left the can, or the owners/managers of the golf
course. Here is a bit of more
complication, the golf course is owned by the city government – in the name of the
people of that municipality.
Most
of the time, the simplest situations, can readily become complex. And in that feature of tort law, most
governing principles and practices are developed to handle the complexities
that emerge. While this unit cannot
address all these complexities, there are a set of basic concepts that if known
and appreciated, a student cannot only be introduced to those complexities, but
be armed with the accompanying knowledge by which he/she can study this topic.
The
more citizens know about tort law, the more they can choose life styles and
acquire specific information that can, in turn, protect their legitimate
interests. But more in line with the
aims advanced in this blog as to the purposes of civics courses (to encourage
students to view citizenry as a partnership), the processes of the judicial
system should be aimed at advancing justice.
So,
some initial questions a study of tort law should address can be: who has a duty in a given situation where harm
occurs? How does one define related
legal principles in a given, harm-inducing situation? And how do the evolving realities – such as
in the economy and/or in technology – affect responsibilities parties might
have in harm-inducing situations?
In the last posting, three tensions
were introduced: strict liability vs.
negligence, malfeasance vs. nonfeasance, and factual
causation vs. legal causation. They are tensions
that have been evolving since the mid-eighteen-hundreds. Some argue the main force pushing this
overall evolution has been caused by technological changes. Others argue the economic/political forces
have been at work. These arguments
provide the backdrop for a historical tale.
The next posting will begin
describing the first of these tensions. Whether
the law should count on pure cause or count on notions of fault is a basic
question. Within the American legal
tradition – that of common law – this concern has demanded a great deal of
judicial attention.
[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA: The Teaching Company/The Great Courses,
2017), 230-445.
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