A Crucial Element of Democracy

This is a blog by Robert Gutierrez ...
While often taken for granted, civics education plays a crucial role in a democracy like ours. This Blog is dedicated to enticing its readers into taking an active role in the formulation of the civics curriculum found in their local schools. In order to do this, the Blog is offering a newer way to look at civics education, a newer construct - liberated federalism or federation theory. Daniel Elazar defines federalism as "the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both." It depends on its citizens acting in certain ways which Elazar calls federalism's processes. Federation theory, as applied to civics curriculum, has a set of aims. They are:
*Teach a view of government as a supra federated institution of society in which collective interests of the commonwealth are protected and advanced.
*Teach the philosophical basis of government's role as guardian of the grand partnership of citizens at both levels of individuals and associations of political and social intercourse.
*Convey the need of government to engender levels of support promoting a general sense of obligation and duty toward agreed upon goals and processes aimed at advancing the common betterment.
*Establish and justify a political morality which includes a process to assess whether that morality meets the needs of changing times while holding true to federalist values.
*Emphasize the integrity of the individual both in terms of liberty and equity in which each citizen is a member of a compacted arrangement and whose role is legally, politically, and socially congruent with the spirit of the Bill of Rights.
*Find a balance between a respect for national expertise and an encouragement of local, unsophisticated participation in policy decision-making and implementation.
Your input, as to the content of this Blog, is encouraged through this Blog directly or the Blog's email address: gravitascivics@gmail.com .
NOTE: This blog has led to the publication of a book. The title of that book is TOWARD A FEDERATED NATION: IMPLEMENTING NATIONAL CIVICS STANDARDS and it is available through Amazon in both ebook and paperback versions.

Friday, October 26, 2018

JEFFERSON AND INNATE GOODNESS


This writer’s reading of Gary Wills’ history of Thomas Jefferson’s thinking in writing of the Declaration of Independence – at least as reflected in the books he read – ran across an insightful quote.  The quote comes from Jefferson’s pen.  It reads:
Man was destined for society.  His morality, therefore, was to be formed to this object.  He was endowed with a sense of right and wrong, merely relative to this.  This sense is as much a part of his nature as the sense of hearing, seeing, feeling; it is the true foundation of morality, and not the to kalon,[1] truth, etc., as fanciful writers have imagined.  The moral sense, or conscience, is as much a part of man as his leg or arm.  It is given to all human beings in a stronger or weaker degree, as force of members is given them in a greater or less degree.  It may be strengthened by exercise, as may any particular limb of the body.  This sense is submitted, indeed, in some degree, to the guidance of reason; but it is a small stock which is required for this; even a less one than what we call common sense.  State a moral case to a ploughman and a professor.  The former will decide it as well and often better than the latter because he has not been led astray by artificial rules.[2]
Is this true?
          The sentiment flies in the face of the tabula rasa view of the human mind.  To remind the reader – if needed – the term tabula rasa became prominent during Jefferson’s time.  That can be attributed to the writings of Jean-Jacques Rousseau, Francis Bacon, and John Locke.  It basically says, humans are born with no beliefs, inclinations, or biases other than their basic instincts.[3]
Of these three writers, Locke is most interesting when one is considering Jefferson’s thinking and writings.  Many seem to want to attribute this founding father’s inspiration coming from Locke and Locke’s supposed adherence to a natural rights view – as that construct is defined today. 
Wills claims that Jefferson did not even own a copy of Locke’s famous political/government classic, The Second Treatise of Civil Government.  But he did own Locke’s Essay Concerning Human Understanding, a more epistemological work.  And yet, the above quote seems to indicate Jefferson’s disagreement with Locke’s contention that humans are born with a clean slate.
This was an active point of debate during Jefferson’s time.  Such writers as Thomas Reid, Francis Hutcheson, David Hume, and Adam Smith actively contributed to this discussion – they did not all agree.  But some time has gone by – the discussion referred to here occurred during the late 1700s, coinciding with the writing of the Declaration and later on, the Constitution. 
In the years since, the study of psychology or related study, have in part been about answering the questions:  are humans naturally prone to be good; to do good works?  The answer:  maybe.  There is evidence indicating Jefferson was right, but the final verdict is still out.  But the research does suggest an answer.
One researcher, Michael Tomasello,[4] reports that one can observe young children have a bias toward good works – being helpful (at least attempting to be so).  And further, that this bias is not enhanced or furthered by rewards.  Therefore, training does not enhance or detract from this proclivity.  Plus, researchers observe this trend across cultures that vary in how and when social rules are taught.  And humans’ relatives – chimpanzees – show this bias toward helping under appropriate experimental setups.
In sum, Tomasello believes that, yes, humans have a natural inclination toward helping others from an early age and that what parents do or the culture encourages has little to do with this bias.  But that view is based on work with very young children.  This writer, a former secondary school teacher, can testify that teenagers, as a group, are not known for their altruism. 
He witnessed acts of charity by students he dealt with, but he also witnessed ample cases of cruelty or indifference when it came to the needs of others.  So, is there a transition as children grow up?  Tomasello reports further:  as very young children become older, say about age 3, they are more discriminating as to who will benefit from their good works.  It takes on a more transactional character; they will be more likely to be kind or apt to do a good turn to someone who has been good to him/her.
Also, at work is youngsters learning and accepting social norms.  These norms exist to facilitate societal existence – they are important.  There are too many needed behaviors from basic courtesies to how to behave in various social events or arrangements to count on more formal approaches, like enacting laws.  If nothing else, they make social living easier.  So, as children learn these norms, a natural tendency is to want to be part of it all and not be seen as weird.  Weirdness includes bucking social norms and among the young is fodder for ridicule.
Another researcher, Hillard S. Kaplan, agrees.  From an anthropological perspective, Kaplan is said to report “[m]odern humans have lived for most of their existence as hunter gatherers, so much of human nature has presumably been shaped for survival in such conditions … Kaplan has found evidence of cooperation woven into many levels of human activity.”[5] 
This includes division of labor between the sexes, among the ages of people, and among kin members and members of other families.  No choices here, cooperation was essential for survival.  And to be efficient, people being cooperative, need to be so willingly or voluntarily. 
The more people want to be in-sink with what is expected or needed, the more likely it will be done correctly, thoughtfully, and with less resources.  Feelings of altruism facilitate establishing such relationships.  Further, the more a society becomes specialized in its economic activity, the more these factors become important.
The cited New York Times’ account of this research goes on to report:
Indeed, it is in our biological nature, not our political institutions, that we should put our trust, in this view. Our empathy is innate and cannot be changed or long suppressed. “In fact,” Dr. [Frans] de Waal writes, “I’d argue that biology constitutes our greatest hope. One can only shudder at the thought that the humaneness of our societies would depend on the whims of politics, culture or religion.”
The basic sociability of human nature does not mean, of course, that people are nice to each other all the time. Social structure requires that things be done to maintain it, some of which involve negative attitudes toward others. The instinct for enforcing norms is powerful, as is the instinct for fairness. Experiments have shown that people will reject unfair distributions of money even it means they receive nothing.[6]
          Yes, research also indicates that humans can be selfish as well as charitable.  And, as this blog has argued, the educational institution in adopting, along with the whole polity, a natural rights perspective as the most influential view of governance and politics has led to an abandonment of being that institution dedicated to bolster the charitable side or a moral side.  It has led to a youth culture not noted for its altruism.
          Also, anti-social events – wars, criminality, snobbery, etc. – call for cooperation.  That is, to be successful, within an effected group, those who can exploit cooperative tendency for others in the group, will more likely achieve its goals.  “Lawrence H. Keeley, an anthropologist who has traced aggression among early peoples, writes in his book ‘War Before Civilization’ that, ‘Warfare is ultimately not a denial of the human capacity for cooperation, but merely the most destructive expression of it.’”[7]
          That then is what this question over cooperation, altruism, helpfulness, being moral, and the like tends to inspire in the current discussion.  Perhaps the late 1700s is not that long ago.  The balance between selfishness – natural enough – and charity has been part of the human condition from before civilization.  Civics education – one can argue – needs to address this ongoing battle.


[1] Kalon refers to ideal physical or moral beauty as the term was used by ancient Greeks.

[2] Garry Wills, Inventing America:  Jefferson’s Declaration of Independence (New York, NY:  Vintage Books, 1978/2018), 202-203.

[3] Without trying to be suggestive, the writer’s understanding is that sucking is about the only behavior instinct humans have.

[4] The information in this posting reporting on contemporary research on the psychology of altruism is taken from Nicholas Wade’s reporting.  See Nicholas Wade, “We May Be Born with an Urge to Help,” The New York Times, November 30, 2009, accessed October 25, 2018, https://www.nytimes.com/2009/12/01/science/01human.html .

[5] Ibid.

[6] Ibid., emphasis added to highlight the potentials of a viable civics-education program.

[7] Ibid.

Tuesday, October 23, 2018

TEACHING TORT LAW TO SECONDARY STUDENTS


[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 his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
Comparing the “short” history the last series of postings presented with that of foreign trade or the opioid crisis of earlier postings, this last history is not so short.  The length has to do with organizing that history around the three tensions highlighted – strict liability vs. negligence, misfeasance vs. nonfeasance, and factual causation vs. legal causation. 
But a teacher might feel that to assign students to read that history might be asking too much.  This developer agrees.  In these considerations, teachers should keep in mind the big picture: what do students need to know to be able to evaluate the nation’s handling of tort law – especially as it relates to federalist values?  And that portion of the history reviewing strict liability vs. negligence might be enough.
With that in mind, he offers some other options.  One concern is that some of this history might prove to be too abstract.  For example, describing intervening nuances in attributing negligence can be found too difficult for many students to appreciate or understand.  What might be considered is to either assigning those portions of the history to the more sophisticated students or omit it from the history altogether. 
          A second concern, the length itself, can be handled in various ways.  One way is:  the teacher can divide the class into three groups assigning each group one of the subsections that correspond to the three tensions.  This can be done several days before the beginning of the unit and, if assigned that way, the teacher can dedicate the first lesson (first class period) of the unit reviewing a list of organizing concepts along with conducting a discussion over the “no duty to a stranger” principle.[2]
          The discussion can last about fifteen minutes and then segue into a conceptualizing exercise that can grow out of the discussion.  So, as the discussion progresses, the teacher can present organizing concepts:  the American court system (its structural elements), its tensions (the three tensions highlighted in the history and of which each student has read about one of them), common law/case law, civil law, precedent, defendant and plaintiff (the adversaries), cause vs. fault, trial courts, appeal courts, reasonableness, and foreseeability. 
          During the last half of the lesson (about twenty-five minutes), these concepts can be reviewed.  By reviewing the concepts, the aim is not to impart sophisticated definitions or instilling a working capacity in their use.  Instead, the aim is to introduce the students to these ideas and have them begin using the ideas by reflecting on how they relate to one another.  One tool that teachers have used for this type of lesson is a concept wheel. 
A teacher offers the student a central concept – here, that would be tort law – and writes its symbolic representation – “tort law” – in the middle of a large circle.  The teacher suggests three or four main sub-ideas.  For example:  tensions, feasance, cause and fault, and liability standard can be used.  If this is a bit too abstract how about blame, money award, duty, and adversaries? 
Students, in their notes or on a handout (which can be already set up), as the discussion continues, are to fill in the circle with the reviewed concepts as they see them relate to one or more of the sub-ideas.[3]  As time allows, the student toward the end of exercise write out, to the best of their ability, a working definition for each concept and a brief paragraph on how one of the concepts relate to their portion of the history they were assigned to read.[4]
Lesson two can be dedicated to review, in broad terms, the nation’s court system.  This need not be overly detailed account of the structure.  A working knowledge of the following will do.  That is, knowing that there is a federal/national court system and state court systems; and within each level, there are trial courts, initial appeal courts, and a supreme court and that appeals follow that progression.  The teacher might augment this by explaining generally what an appeal is.
And, further, that the grounds for an appeal can be for various reasons; i.e., (1) a determination that the verdict is unreasonable or that during the trial the verdict was not supported by the evidence; (2) the judge made a mistake in applying the law (either statutory or constitutional law); and (3) an obvious miscarriage of justice is being perpetrated by the verdict or the trial’s process.  The textbook can be of assistance in this lesson.  Most civics textbooks review the structure of the court systems of the nation.
Lesson three could have students do an extended exercise – over two class periods – in which the students analyze their history reading to review the facts that are portrayed and prepare for an argument of how the history relates to federated values.  The teacher begins this by reviewing the federalist moral code – a code presented earlier in this blog.[5]  The lesson strives to have students prepare and engage in an argument over the federalist nature of tort law.
Another approach to this unit is for all students to read the whole history – over three assignment allotments – and then follow the above suggested activities around such a reading schedule.  Whether the reading is assigned to all students or is divided into thirds, the main effort is to, one, have students evaluate tort law in the US in accordance to federalist values and, two, use the opportunity to develop an argument over some aspect of tort law.
This latter aim can be accomplished if upon implementing the suggested approach for the two-class period lesson outlined above, the teacher directs students to pick one of the cases the Great Courses source identifies and is listed in an accompany online site.[6]  The site identifies a list of cases that have served up precedents regarding the various issues related to tort law in the US. 
By pairing students – two students pick the same case – they read the online material, consider the history of tort law, and apply the concepts reviewed in class to develop a pro-federalist argument (how the case advances a federalist value) and an anti-federalist/perhaps pro-natural rights argument (how the case challenges a federalist value and/or advances a natural rights argument).  Each student takes up one of these positions.
The arguments are written down in a logical format – perhaps utilizing Toulmin’s model reviewed and explained in the former posting, “Toulmin’s Elements of a Logical Argument (August 22, 2017).
The last lesson of this unit would be dedicated for the unit’s evaluation element.  Here the students can be tested to see their comprehension of tort law concepts, their appreciation of how tort law challenges federalist values, and perhaps their ability to evaluate – or short of that, synthesizing an existing critique (either in favor or in opposition) – to the tort system of this nation or to one of its elements.
With that evaluation lesson, the unit of study dedicated to the judiciary system comes to an end.  This unit represents how a suggested course of study in civics can treat a national element of the nation’s governmental/political arrangement.


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

[2] For readers who have not read this blog’s treatment of this principle, it refers to the fact that American common law does not place any burden or duty on a citizen to do something positive to assist another party.  The example given to illustrate this principle is:  one does not legally need to save a flailing baby in a puddle from drowning.

[3] One can readily see what a concept wheel looks like by using a search engine with that term, “concept wheel,” to find it.

[4] If the lesson takes too long, students can finish this assignment overnight and have it collected at the beginning of the next lesson – possibly for a quiz grade.

[5] See the posting, “A Federalist Moral View,” June 20, 2017.

[6] This site is not completed yet.  Over the next week or so, it will be.  Remember, this development is in real time!  The site has the following URL:  https://1drv.ms/w/s!AjzdhXNiY9HO3AFweEjyHhWDwY0G 

Friday, October 19, 2018

REMEMBERING MRS. O’LEARY’S COW


[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 his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
When it comes to legal causation, the last topic this history of tort law is reporting, the courts hold approximation as a determining, key concern.  The Palsgraf v. Long Island Railroad[2] case illustrates how approximation works – or how far down the chain of events does factual causation stretch –in determining liability for a negligent act in a tort claim.  In that case, a chain of cause and effect occurrences borders on the bazar.
Here goes that chain:  two men in 1924 are running after a train at a railroad station.  One gets on but the other struggles to make it.  A railroad employee helps by extending his hand out.  The struggling man grabs the hand and another man on the platform also helps but what is important is not whether the teetering man makes it, but that in the jostling he drops his package.  Unfortunately, the package has explosives in the form of fireworks.  Upon hitting the tracks, they explode.
So far, the plaintiff of this case is not involved in these events.  She, Helen Palsgraf, happens to be standing some distance away.  She is not injured directly from the fireworks; her clothing doesn’t catch fire from a spark or she is not hit by flying debris.  Instead, she stood under these scales and the explosion caused a shock wave that then loosens the scales causing them to descend on Palsgraf and they injured her. 
Was the negligence of the teetering passenger or the railroad employees liable for Palsgraf’s injuries?  That was Palsgraf’s claim in a tort case against the railroad company and the trial court agreed.  That decision was further supported by the Appellate Division.  But when the case reached New York’s highest court, the Court of Appeals, it overturned the lower courts’ decisions and found that the harm in this case was too far down the chain of causation.
Yes, one could readily trace a “but for” chain between the explosion and Palsgraf’s injuries, but there was a certain aspect missing, and this being the situation, the New York court found the link between the explosion and the harm as being too far.  The missing ingredient that subsequently helped establish the standard that today helps courts determine whether a factual causation link is viable or not is foreseeability. 
That is, can one determine that there was a foreseeable consequence to a negligent act?  If so, then an actionable claim can be successful – the chain of causation is recognized.  If not, the chain is broken – the chain is not recognized in a tort claim.  The New York Court of Appeal determined that the negligent acts causing the fireworks to explode was too remote from the injuries because that consequence was an unforeseeable result.
Another case, Madsen v. East Jordan Irrigation,[3] also illustrates, in 1942, this standard.  And it also, as with Palsgraf, is a case involving explosives.  Without reviewing the facts of that case – having to do with mother minks eating their young – both cases have ultrahazardous, explosive products initiating the harm – which is usually subject to strict liability.  Again, the plaintiff did not prevail and, as with the railroad platform case, what was missing was a foreseeable consequence.
Does that mean that all harm must be foreseeable for it to be actionable in a tort case involving negligence?  No.  The courts have also adopted an “eggshell-skull” rule.  This rule holds that if one is responsible for a negligent act that is generally innocuous or reasonably considered unharmful, but in a specific case turns out to be harmful, the perpetrator of the negligence is held responsible and liable to make the victim whole. 
In other words, a light tap on a shoulder that somehow turns out to result in serious harm, illustrates an “eggshell-skull” event, and such claims have been found to be successful in tort cases.  The reader is referred to an 1891 case, Vosburg v. Putney,[4] that illustrates this limitation to the foreseeable standard.  But generally, the foreseeable standard does help courts determine how far a chain of causation can go in terms of determining liability.
That completes this blog’s review of legal causation and with that it concludes this history of tort law.  The history, presented in this blog, summarized three tensions within the nation’s treatment of tort law.  The three are strict liability vs. negligence, misfeasance vs. nonfeasance, and factual causation vs. legal causation.  These tensions were described and explained as the product of the nation’s common law or case law history.


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

[2] “Palsgraf v. Long Island Railroad,” Case Briefs, n. d., accessed October 17, 2018, Palsgraf v. Long Island R. Co., 248 N.Y. 339 (N.Y. 1928), accessed October 17, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-dobbs/negligence-the-scope-of-risk-or-proximate-cause-requirement/palsgraf-v-long-island-r-co/ .  Another case resolved with a Judge Benjamin Cardoza opinion.

[3] “Madsen v. East Jordan Irrigation, 1942” Case Briefs, n. d., accessed October 18, 2018, https://www.casebriefs.com/blog/law/torts/outline-torts-law/strict-liability-outline-torts-law/case-overviews-66/22/ .

[4] “Vosburg v. Putney,” Case Briefs, n. d., accessed October 18, 2018, Vosburg v. Putney, 86 Wis. 278, 56 N>W> 480, 1893 Wisc. LEXIS 133 (Wis. 1893), https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/intentionally-inflicted-harm-the-prima-facie-case-and-defenses/vosburg-v-putney/ .

Tuesday, October 16, 2018

“BUT FOR”


[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 his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
Finally, this blog can address more directly the legal concept of causation.  It turns out, causation is very important in determining liable negligence.  Legal analysis identifies two types of causation:  factual causation and legal causation.  This posting will review one and introduce the other. 
          Sometimes causation appears to be obvious; other times it is not.  There are times, because one tends to associate the sequence of events to indicate causation, that if one event precedes another, the first is the cause of the second.  This blog has already identified this proclivity as a source of potential illogical argumentation.  Here, the issue is ascribing legal responsibility for causing harm and one should remember getting it wrong can augment an already harmful event with another.
          A saying that helps identify a cause and effect relationship is “but for.”  Y would not have happened but for X.  In this arrangement, X is determined to have caused Y.  But this is not always easy to determine, and no court case illustrates this issue more than Daubert v. Merrell Dow Pharmaceuticals, a 1993 tort case.  And the harm in question could not be more serious, that of birth defects. 
In the years before this case there was a noticeable number of birth defects involving babies being born to women who had taken the drug Bendectin, which was produced and distributed by the defendant, Merrell Dow.  Here is part of the context of the case:  during those years, some women who consumed the drug did not give birth to babies with defects and, of course, not all birth defects in that time were to women who took this drug. 
So, in terms of causation, was the incidences of birth defects and the consumption of the drug happenstance or was there a cause and effect relationship?  That was the legal question in this case.  How to find out?  Here is what Cheng reports on how the plaintiff in Daubert attempted to prove causation:
          In Daubert, the plaintiff wanted to prove that Bendectin caused his birth defect.  But how could he do this?  One argument made by the plaintiff was a rather simple one – the plaintiff’s mother took Bendectin, and plaintiff suffered birth defects.  In addition, there were reports of other mothers who also took Bendectin, and also gave birth to children with birth defects.  This is anecdotal evidence; it’s based on individual anecdotes.  On one hand, you might say that inferring things from anecdotal evidence is pretty natural.  We do it all the time.  If you touch a pot and burn yourself, you suspect that the pot was hot and caused the burn.  A friend tells you she did the same thing.  You both conclude that touching a hot pot is a bad idea.  Anecdotal evidence of causation.  But anecdotal evidence can be dangerous and misleading stuff.  Why?  Well, because two things are associated with each other doesn’t mean that one thing caused the other.[2]
          Cheng goes on to point out that birth defects unfortunately happen regularly without taking this drug; that other chemicals could be to blame; or perhaps the reason the women took the drug in the first place – morning sickness – is causing the defects.
Central to the arguments of the plaintiff was testimony of experts to make the link between the drug and the defects.  This last factor provides the central precedent from this case.  It turns out the plaintiff’s experts testified that, yes, the drug caused the birth defects.  The eventual appeal decision concerning this argument was that the expert testimony was not accepted because the methodology these experts used were not those methods generally accepted by the scientific community.  This case, in other words, established a “high-bar” standard.
The point here is to give a sense of how difficult it is to establish factual causation.  It can be very difficult and tricky.  The disadvantage of taking on a corporate defendant, often a large corporation, is that it can secure top legal representation.  Those lawyers successfully questioned how the plaintiff’s experts arrived at their conclusions.  In terms of Daubert, the plaintiff’s experts used what is called epidemiological studies; i.e., observing the incidence and distribution of the phenomena in question – that being birth defects.[3]  Merrill Dow’s lawyers attacked this methodology.
That approach was not good enough, they claimed, and they were supported by the scientific community.  Before moving on, given the subject matter – birth defects – one should note that optional methodologies are highly limited.  It is not like studies can purposefully expose pregnant women to medications to see if birth defects will result in an experimental design. 
So, according to the Daubert standard, to establish factual causation, a plaintiff must employ findings that are arrived at by accepted methods.  By whom?  By the scientific community.  This reminds one of the authority professional customs enjoy in tort courts especially if the case involves a medical concern.
In summary, then, factual causation needs to be established by scientific information.  Usually, that would be obvious; one heavy automobile hits another due to negligence and someone is injured in the car hit, the scientific backing that the accident caused the injury is not debated.  But in some cases, as one finds in the Daubert case, the question can become quite complex. 
But, one needs to add, when the “but for” formula, even if unchallenged, is used, it doesn’t always arrive at liable causation.  For some cases, legal causation comes into play.  A person injured or somehow suffers a harm even if but for the acts of another party, he/she needs to consider the concerns of legal causation.  What is that?
In way of introducing this other form of causation, the tension between it and factual causation exists not in determining whether some event or factor caused the harm, but whether the factor or event was approximate enough to the harm. 
To give an example where legal causation might be a factor the following is offered:  a person negligently swings a baseball bat and hits another.  Surely, a clear case of liability exists for the injuries incurred by the victim.  But suppose that victim was to attend his daughter’s marriage that afternoon and since the injury precluded his attendance, the ceremony is delayed at some expense to the father and his family.
Surely, “but for” the accident, the father would have attended the wedding ceremony, but now cannot.  Is the “swinger” liable for those non-medical expenses?  This is a question of legal causation.  Events when they happen can and often do affect many consequences, some immediate to the harm and others more distant from the harm.  The next posting will further delve into this type of event and how they entail legal causation.


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

[2] Ibid., 310.

[3] Ibid.

Friday, October 12, 2018

NUANCE FACTORS


[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 his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
This posting, as the blog works its way through a short history of tort law in the US, is covering the last of three tensions in that history.  The first was strict liability vs. negligence; then malfeasance vs. nonfeasance; and the last will be factual causation vs. legal causation.  The last posting and this one are short transition reports on supportive concepts related to causation:  reasonableness and intervening nuances.
          By intervening nuances, this posting describes those factors that possibly intervene to compromise the more general principles of responsibility in a tort claim.  Again, it is the history of related case law that supplies this narrative.  But before beginning this last effort, a reminder is worth pointing out.
          As this blog tells this history, one should keep in mind its aim.  It is not to initiate a process resulting in a student choosing a law career or to introduce the basic framework of the nation’s law system.  It is not even to make lawyering attractive or legitimate.  Instead, the blog aims to bring out the issues surrounding tort law so that students will be able to address them as citizens.  These issues should be attended to and citizens should be willing to address them since they are important to a community, a state, or the nation.
          Since the nation shares many of the components of its legal system throughout its jurisdictions, despite its federal structure (and the exceptions of the Louisiana’s civil foundation), the whole concern can be easily treated as a national one.  A national approach is being used here as this account cites case law from various states and the federal judiciary.  To set the stage for the third tension – factual causation vs. legal causation – this posting reviews some exceptions or potential exceptions to the negligence standard in how courts treat tort claims.
          Earlier in this history, the point was made that legislatures – at the state level – and Congress – at the national level – can impose exceptions on the negligence principle or undo the effects of precedent by enacting appropriate legislation.  Overall, this power has not been employed; the nation has a strong commitment to abiding by common law.  But in one area, one law, has had an extensive effect on undoing the common law related to employment.
          The US Congress, with the leadership of the Johnson administration, passed the Civil Rights Act of 1964.  That law – not standard – imposed a rule making discrimination based on race, color, religion, sex, or national origin (added since this law’s enactment are handicap and familial status – a total of seven groups as being designated as suspect classes) illegal.  This law takes on a definite affirmative duty, in a negative direction – it tells employers what they cannot do – and by so doing disregards relevant common law.
This law, therefore, provides a nuanced difference in how tort claims are treated when it comes to job related issues.  Cases that on the surface has nothing or little to do with the treatment of a suspect class, upon further investigation, can be potentially shown to reflect prejudicial or otherwise discriminatory practice against a member of that group.  Once shown, common law has little authority in determining the outcome of the case.  And, this law has had effects on non-employment issues as well. [2]
          The next nuance that deserves attention is the case when there is no law or practice addressing the “reasonableness” of a behavior but can be shown to have been contributory either in its fulfillment or in its disregard.  In the case, Martin v. Herzog[3] of 1917, the plaintiff, Martin, was an injured victim and her husband killed, when her buggy was hit by a car.  The nuance was that in contradiction to the law, the buggy did not have an illuminated light.  The defendant, Herzog, pointed this fact out and claimed the Martins were guilty of contributory negligence and, as common law provides, exonerated him of any liability.
          The determining court decision agreed with Herzog, but in addition, the case gave the famous judge, Benjamin Cardozo, the opportunity to establish a legal principle.  That is, the act of disobeying a law is unreasonable in and of itself.  The term negligence per se has become an important tort principle – an influential nuance – that both plaintiffs, like the Martins, and defendants need to take into account.
          And the last nuanced factor is custom.  Many professions, jobs, and other pursuits, through the years, have established “the way of doing things.”  They need not be written down or part of a professional list of standards, but, by and large, those that perform the related activities know them.  The legal question these customs have brought up is:  do they supersede negligence considerations in tort claims?  A case that helped define the role of custom is The T. J. Hooper case.[4]
          Without getting into the details of the case, the defendant, a tugboat company, was held liable due to its reluctance to use a new technological invention, the radio, and, as a result was not informed about a storm approaching one of its tugboats and its customer’s barges.  This, in turn, resulted in the tugboat and barges being hit by the storm and sinking, losing the plaintiff’s coal which was the barges’ cargo.  
Even though the radio was not customarily used, the judge, another famous legal icon, Learned Hand, established the responsibility of professional customs keeping abreast of newer developments.  Generally, professional standards or customs can be held to various degrees of authority. 
The courts have extended quite a bit of authority to the customs of particular professions.  They are the professions of medicine, law, and accounting.  Other areas, for example, engineering, not so much.  To the extent it is, the rationale is that the profession is noted for its specialization and technical aspects.  These characteristics are judged to be subject matter juries would find difficult to fully understand.
With that background – appreciating the role of reasonableness and factors that present nuances in negligence claims – this blog is ready to address, more directly, causation.



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

[2] A case establishing this reliance on the Civil Rights Act in a non-employment issue was Graham v. Richardson. In that case, an Arizona welfare law was determined to be discriminatory against suspect groups and, therefore, unconstitutional.  In so doing, a statue was used to define a constitutional designation.  See “Graham v. Richardson,” Case Briefs, 403 U.S. 365 (1971), n. d., accessed October 11, 2018, https://www.google.com/search?q=in+law+what+is+a+suspect+group&oq=in+law+what+is+a+suspect+group&aqs=chrome..69i57.10298j0j7&sourceid=chrome&ie=UTF-8 . 

[3] “Martin v. Herzog,” Case Brief, n. d., accessed October 11, 2018, 176 A.D. 614, 163 N.Y.S. 189, 1917 N.Y. App. Div. LEXIS 5114 (N.Y. App. Div. Feb. 2, 1917), https://www.quimbee.com/cases/martin-v-herzog .

[4] The T. J. Hooper Case, Case Briefs, n. d., accessed October 11, 2018, n. d., https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/the-negligence-issue/the-t-j-hooper-3/ .

Tuesday, October 9, 2018

DON’T CARE HOW ONE FEELS


[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 his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
To this point in this blog’s review of tort law, one lesson drawn is that liability from any tort claim arises from one being found guilty of negligence.  One does not need to help someone else, no matter how serious the danger.  This no-duty principle applies when there is no special relationship such as one defined by a contract or familial connection or some special inherent responsibility – like an innkeeper-guest or life guard-swimmer or teacher-student relationship.
          This blog has characterized this no-duty element as the indifference element or principle.  It betrays a tension within the nation’s legal system and it is the product of this system’s reliance on common law when it comes to tort claims.  Now the blog will shift its focus to what constitutes negligence and one of its main concepts is that of reasonableness.  That is, negligence occurs when a person fails to be reasonable in a given situation and harm results to some victim.
          Consequently, the preeminent question becomes: was the harm the result of someone acting unreasonably?  So, central to this question is another question:  what is being reasonable?  When one sets about to answer this latter question, one quickly can see that everyone is apt to being unreasonable from time to time.  The reasonable person – as a defining attribute – is a mythical person.  The reasonable person surely is not the average person as one can readily or regularly observe oneself or others acting unreasonably.
          Like how, for example?  One over-pours some liquid ingredient in following a recipe.  Or one veers one’s car beyond the highway’s outer lines.  Now, if one does one these things and it results in harm to someone else, the person can be successfully sued, and the claim would be that that unreasonable behavior resulted in or caused the harm.  If the court agrees, then that person can be held liable to making the victim whole.  Usually, that would be in the form of a monetary award.  If serious enough, a punitive award can also be levied.
          The list of potential unreasonable behaviors is endless.  They can range from being absent-minded while walking down the street to misinterpreting visual sights on that same street.  Take this example: 
a driver drives his car to a traffic-lighted intersection and to the right, at the corner, there is a bicyclist standing waiting for the light to turn green to cross the street.  The driver wants to turn right and is concerned over what the bicyclist is going do. 
The driver turns his head left and sees that in two of the on-coming lanes of a multi-lane street, two cars stop indicating in the driver’s mind their light has turned red.  That means his way is free to turn right on red and wanting to do so before the bicyclist gets that green light, launches forward only to be hit by an oncoming car.  What happened? 
The car driver misinterpreted the stopping cars; they were in turning lanes and their stopping was due to the turning lanes having a red light while the rest the lanes still had a green light.  The first driver misinterpreted – probably due to that person’s distraction over the bicyclist – and was negligent in terms of the ensuing accident.
Negligent people are not bad people, immoral people, or hateful people; they are just negligent people.  Some are negligent more often than others.  Some are that way because they are young and impulsive; some because they are old and are more apt to being absent-minded.
          An insightful quote one can think of is offered by Justice Oliver Wendell Holmes,
If … a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of heaven but his slips are no less troublesome to his neighbors then if it sprang from guilty neglect.[2]
One can substitute the term, “intentional negligence,” for guilty neglect.  The point is, when it comes to most tort cases, intentions do not protect defendants.
          And in making this point, one is open to establishing objective standards; at least that is the goal of courts.  One is not concerned with how nice a person is or other subjective judgements.  Instead, one applies the reasonable standard – what a reasonable person would do – to determine the duty of care one person should have for another. 
This allows jurors or judges a more attainable objective, the external facts of a case, to determine the outcome and not the subjective feelings of those involved, particularly the defendant, or what was otherwise occurring in any of the subjects’ minds.  In other words, the salient factors of the case are external, not internal like feelings (“I don’t want to hurt a bicyclist”) or beliefs (“the oncoming cars have a red light”).
          The courts have made some allowances for individual attributes that steers away from a totally objective view for everyone.  This leads to some complicated matters.  There might be physical elements of the person’s condition at a given time – say he/she suffers a seizure just before plowing a car into someone else’s car.  Or it can be an ongoing condition, like blindness. 
Again, reasonableness is looked for; is this the first seizure, for example, or one of many?  If the latter, has the person taken reasonable precautions to avoid inflicting harm – like giving up driving?  And not all debilitating conditions are equally seen as legitimate.  For example, courts have not been lenient with mental disabilities (like personality disorders) as with physical disabilities.  This has been somewhat controversial.
Of course, there are certain distinguishing attributes that place a higher burden on a defendant.  The most obvious is expertise.  A doctor is held to a higher level of responsibilities in administering medical service while a layperson – say, trying to assist a person suffering a medical emergency – is given more leeway in what he/she does in terms of providing aid.
Another moderating factor is age.  Apparently, courts have been more lenient with young aged subjects than older subjects – differences being more standard (a three-year-old, by and large, acts like a three-year-old).  There is a vast level of divergence among those who are eighty and above in their behavior or mental capacities.
And lastly, in trying to handle this business of negligence and reasonableness, there have been those who have attempted to apply economic insights:  does the costs of being reasonable outweigh the costs of not being so?  There has been a general trend among some to apply economic thinking to various social issues and this is one of them.  Here, this only deserves a mention, but the reader should know, as with other aspects of tort law, controversy is easily aroused with such thinking and arguing.
Hopefully, the reader can readily see how application of “reasonableness” can and does affect claims of negligence.  In the next posting, the writer will provide some ideas on how such a connection – reasonableness with negligence and causation – has developed some standards of care.  This will be addressed before this history delves directly into causation.



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

[2] Ibid., 268.