A BACKDROP FOR A SET OF TENSIONS

[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  A federalist moral code identifies justice as one of that code’s key instrumental values; only superseded by the code’s trump value, societal welfare.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.

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[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

AND NOW THERE IS TORT LAW

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.

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[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.