Now this blog proceeds to report on the development of one
more unit of study. To date this blog
has reported on the development of two units, one on foreign trade and its
effect on job availability (an international issue area) and the other on the
opioid epidemic (treated as a local concern).
For the purposes identified in previous postings, it’s time to do – to
report – a third.
The designations assigned of the earlier
units were done for the purposes of the blog, not due to their content. That is, the two issues to date could have
been treated at any of the identified levels of the polity: local, national, or international. The same can be said for the next unit. Initially, the area of concern for this third
unit is tort law. It is being treated as
a national topic.
Notice, a specific issue or problem has
not yet been determined and this fact highlights that the development of this
next unit – as was the case with the other two – is being done in real time. The developer has some ideas but has not
committed to one of them yet.
Given a course of study outline,
previously provided in this blog, the outline identifies a Unit 11, “The
Courts.”[1] Of the unit topics listed on the outline, The
Courts seems like the obvious place to situate this topic. Since what is anticipated, in terms of
content, affects the courts equally throughout the nation, the national level
seems most appropriate.
As with the other two units, an immediate
challenge is to write a short history. For
this topic, though, this is more difficult than one would tend to think. To start, one needs to settle on a conceptual
level that is neither too broad nor too narrow.
After all, the history of American tort law can easily stretch to the
middle ages in Europe. But if one begins
with a broader view – say approaching the topic through the discipline and
history of jurisprudence – a responsible starting point would be the writings
of Aristotle of ancient Greece.
What is anticipated is that the
history this development presents will limit its review to that of case law in
the US. This might or might not make
references to the middle ages or maybe even the old Greeks. That decision is yet to be made. In this posting, therefore, the blog’s
development of this next unit needs to conceptually start elsewhere.
Therefore, a good place to start is
to make a distinction between two approaches to tort law: common law and civil law. Tort has to do with damage being done on a party
by another party. A simple example is
when one driver drives his/her car into another person’s car. The damaged party, to seek relief from the
harm, files suit against the alleged party that stands accused of causing the
harm.[2]
Usually, relief is in the form of a
monetary award to the damaged party by the party found to be responsible. But within the Western world, there are two
approaches to this process. The reasons
for this distinction are basically historical.
England opted for a common law tradition and mostly stuck to it.
Common law is based on case law; that
is, what is considered binding depends on previous decisions – what previous
courts, either justices or juries, have determined to be correct in a given
area of dispute between litigants. This
brings into question the claim that judges should not make law. In the common law tradition, judges, from
time to time, do make law.
Case law is the sum of all judicial
decisions that prior cases have produced.
Case law is divided between criminal law and tort law (and tort law in
the US is mostly based on common law).
People who are charged with breaking
a law – i.e., a statutory law – faces the provisions of criminal law. Law in terms of criminality depends on enacted
statutes – e.g., laws against fraud – not common law. Within this category, when laws are dealing
with private affairs (tort cases), that is known as civil law. This is the system used in most Western
nations such as France that does not have a common law tradition. There are examples of civil law in the US
regarding tort issues, but they are limited in areas of concern.
In the US, most tort law does not
depend on statutes, it depends on common law.
Again, that would be depending on what prior, settled claims have
established and has become part of case law.
The US has inherited this approach (except for Louisiana and its French
traditions) from the British. Most tort
claims are settled using case law as opposed to statutes – that reflects this
nation’s commitment to common law.
Can legislatures and executives of
the state and federal governments in the US bring areas of tort law under the
provisions of statutes? Yes, they can,
but mostly have not done so. Americans,
by and large, feel comfortable with its common law tradition when it comes to
tort law.
Admittedly, if one draws a Venn
diagram that illustrates the boundaries among these various “laws” (case law,
common, civil law, statutory law) it would be quite complex. What is important for the purposes of this
blog is that the US is a common law nation and that tradition calls on courts
to settle tort cases according to prior decisions.
What is useful in this initial
posting in addressing tort law, are to report some introductory observations leading
to the development of a history of tort law.
For example, the first observation is that tort law, since it is based
on case decisions, as opposed to statutes, is subject to slow change. Courts, from time to time, just cannot
completely abide with what has previously been decided, a precedent – it might
not fit the facts of the case before it – and that court, usually an appeals
court, changes the law.
What experience shows is that while tort
law does change, it does so slowly. One
of the most important functions law provides is predictability. Change counteracts that benefit, so the
reasons for change, when it happens, will be judged as necessary.
At times, new technological changes
make a precedent non-applicable to a tort claim or the precedent would obviously
lead to an unjust finding. While judges
are bound by common law, one does observe changes taking place. But this process of change hints at a way to put
together a history.
That history can trace the
development of three conceptual areas – strict liability vs. negligence, malfeasance
vs. nonfeasance, and factual causation vs. legal causation – and how their
development are points of historical focus.
And that history will rely on precedent or challenging precedent and the
cases that illustrate these tensions.
They also add to the story-telling
quality in that that history tells the stories of affected parties. One difference, though, case history is not
time determined. A resulting history
will jump around in terms of time, at least as the information of those cases
are found and shared or how the courts have dealt with these various
countervailing conceptions.
One last point to be made in this
initial posting. The aim is not to train
young lawyers or even to encourage secondary students to consider a legal
profession. Tort law is chosen for this
blog because it points to an area of social interaction where federalist values
are tested. In a court of law, one is
concerned primarily with one’s interests – not the general welfare – and one is
wise to assume all the parties involved are looking at the experience the same
way.
What can one say? Are federalist concerns simply not
applicable? That is what this treatment
expects students to ask and, by so asking, the student can make another
distinction. When reviewing cases, one
is tempted to get caught up in the fate of the actors involved. The federalist quality is not in how the
individuals behave or are treated in such adversarial circumstances, but on how
the system seeks and secures justice, an important federalist value.
[1] The course of study identifies the following
units: Unit 1: The individual, Unit 2: The family, Unit 3: The neighborhood, Unit 4: A small business, Unit 5: A labor association (such as a union), Unit
6: A large corporation, Unit 7: A local government, Unit 8: A law enforcement agency, Unit 9: Congress, Unit 10: The White House, Unit 11: The courts, Unit 12: Society, and Unit 13: International associations.
[2] Tort law can also include the issuaence of
injunctions that are issued to order a party to do or refrain from doing some
action.
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