Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases.
Today's episode features Greg Dickinson, who is an Assistant Professor of Law at the University of Nebraska, where he teaches Contracts, Business Torts and Unfair Competition, and Remedies. He is also a fellow with the Stanford Law School Program in Law, Science and Technology.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
PUBLIUS: Professor Dickinson, I've noticed that tort law seems less familiar to incoming law students compared to other first-year subjects. Why is that?
GREG DICKINSON: For many first year subjects you come into law school with at least some idea of what they're about. You know, you hear criminal law and you're like, well, that's when people do crimes against each other or a constitutional law, and you kind of have a vague sense maybe of what that is.
And certainly something like property, but with tort law, when I came into law school and, and probably a lot of folks, I didn't know what a tort was. You know, I had kind of vaguely heard of a, a pastry called a tort. I couldn't even tell you really what that is but that's, something called a tort.
But I had no idea what a legal tort was. I recognize that with my students and orient them to that on the first day and the way I describe it is through the etymology it comes from the Latin torquere, which means to twist. and it relates to a kind of moral twistedness.
A tort is a wrongdoing that someone does to someone else. It's a wrong between two individuals. And it's a special type of wrong, it's closely related to a moral wrong, but the two don't exactly overlap. And so it's legal wrong, and a legal wrong that causes injury, and so then the law gets involved and says, well, one person was hurt here by a wrong, committed by another.
And the law steps in and allows a solution through the law of torts. And so from a very high level, that's what tort law is, the law that governs when one person wrongs another.
Tort law studies how the law should treat wrongs. When one person does something wrong to another, what are we going to do about that? And tort law's answer, usually, is if one person wrongs another in certain recognized ways, then the law says, well, you, you the person that got wronged: you have a claim, you have a remedy, you can go and sue them, and say, you need to make me, whole again. You need to, to fix what you did to me. and that's typically accomplished by paying monetary damages.
And so you hurt me in some way. maybe you hurt my body, you injured me, maybe you damaged my property. and the tort law system allows a lawsuit, by the victim, by the person who was harmed, against the person who harmed them, to, as best as the law can, make that person whole again, that was harmed.
PUBLIUS: What's the historical purpose behind developing tort law? Why do we need this system?
GREG DICKINSON: I guess Tort law has a few purposes. And one way to talk about its purpose might be to think about the origin of tort law, and why we would have something like tort law.
And the reason goes back, you think of a saying like, eye for an eye, tooth for a tooth. And you think, you know, we're, we're so much more civilized than that today we have modern legal regimes to solve our differences. But it's not crazy to imagine a world where eye for an eye and tooth for a tooth is how things work.
If you don't have a strong government, and somebody does something wrong to you, well, what would justice be? Maybe they killed your goat accidentally somehow, and so you go and take their goat. And that would be justice in a sense. Eye for an Eye and so that would be justice.
But the problem is if you have decentralized correction of injustices that way there's not going to be much agreement about when an injustice occurred. The person might say, well, it was an accident, when I hurt your goat and now you came and took my goat. And so there would be disputes. you end up with people fighting and killing each other and family feuds and all, all that sort of thing when justice of that sort is done individually. It was for a long time done, individually like that. But a, a much better system, is a system where the government steps in and says, okay, well if you have a grievance, let's have a formal procedure for that. So we don't have inter-family fights that span generations, we'll instead have a legal system where if somebody hurts your goat or in a more modern world, damages your car, well then you're not supposed to go, kick their car or go and take their car.
You sue them and you can recover the value of what they've wrongfully damaged in your property And so that's a long way of getting at, your question, which is, what is tort law for? And it's, to provide people, a legal avenue to redress wrongs that people have done to them. And so they, they have a way, a way to become whole, that both, serves the function of making them whole, putting things back the way they were is one function, but also just being a formal legal outlet, rather than self-help.
And so you don't have people going and taking it into their own hands and hurting other people or taking their things, seeking justice. You have a legal, correct or a safer, better alternative, path to making them whole than if they took it into their own hands.
I like to start my class with talking about some of the longest standing torts. You think of something like battery, which in tort law has a special meaning, that is slightly different than the criminal law meaning.
Battery is, if you have caused physical injury, to someone intentionally, you've intentionally struck them, for instance, that would be a very, classic example of battery. And not surprisingly, the law has recognized that for a long time, for a long time, people have recognized that they don't want others intentionally striking and injuring them.
And so for a long time, the law has provided a mechanism of redress, when in fact that does happen. So that's a very longstanding tort of battery. Another, in a similar vein is assault, which is rather than intentionally injuring someone, kind of intentionally putting them in fear of injury, or of harmful or offensive contact.
And so you say, you know, I'm, I'm going to strangle you, or I'm going to kill you, or I'm going to hurt your children, or something like that. That sort of thing. The law also has long prohibited, for obvious reasons. Nobody wants to live in a society like that. And if you're the king and you're trying to set up a kingdom that people reasonably want to live in, that's going to be the very beginning of a legal system, is at least freeing it of intentional violence against other people.
And so those are some, some examples of torts with ancient pedigree, very ancient pedigree. Back in England, at least, as early as the 13th century, the royal courts had redress for this. And, in the modern system, though, those are still available. It still is a wrong if somebody comes up and punches you in the nose, you can still sue them for battery, just like you always could.
PUBLIUS: How has tort law evolved to handle modern problems? It seems like intentional harm isn't the main focus anymore.
GREG DICKINSON: Much more of the legal system these days deals with, for instance, the tort of negligence, which is rather than intentionally causing harm to people, causing harm to people accidentally. and so there's still an element of wrongfulness there, but it's not the wrongfulness of intentionally punching someone.
It's the the wrongfulness of not being as careful as you should have been and, and accidentally causing someone an injury. and so broadly speaking to, to zoom back out, we talked about the law of torts as the law of wrongs. and usually it is dealing with wrongdoing. It's the rare exception where tort law isn't focused on wrongdoing.
But it's a whole host of wrongdoing from, from very intentional punches in the noses to, kind of careless accidents that nobody would've wanted to cause, but accidentally did.
So we don't have complete knowledge about how the tort system arose, but we have knowledge going back a very long way.
And so I can probably best start the story, back in 13th century England. And the way that it started is, in contrast with, the Continental system, the old Roman Law system, which was governed by detailed, statutory law saying, you know, don't do this, don't do that.
Don't do the other thing. In, in contrast, the common law system in England evolved, through the king for, I assume had good reason for saying, I don't want random violence in my kingdom. I want people to like me. I want to stay in power. and so the best thing for me in the kingdom and everyone around is if we don't have violence being done by one group of people to another without justice. And so, in the 13th century, the English courts began to make available what's called a writ of trespass, “vi et armis”, an old, French Latin phrase, which essentially means, the king created, something like a form document.
Like you'd do now. You, you could, if you did your taxes with the old tax forms or if you go to the DMV or something, you might get a form document. and that's kind of what this was. It was a, a form document that said, if somebody has trespassed against you. With force of arms, which is what the trespass “vi et armis” means.
If they've done you wrong by force of arms - hurt you or your property - well, then you can complain about that, to the king. and in the King's Court, you can force that person to show up and explain themselves. And if they can't explain themselves, well, then the judge can do justice and, and make them fix it for you.
By, by paying you for whatever harm was done to you. But the key distinguishing feature of this, in contrast with other historical systems on the continent, is that, look how broad this is. You don't have a, a system of code law that says, if you, if you hurt somebody's goat or you hurt their ox, you pay this.
What you have is a very broad system that says you can complain if somebody commits a wrong against you with force of arms. but that's what you get. That was basically the scope of the law as defined directly by the king. And then you had courts that over time had to figure out, well, what does it mean exactly, to commit a trespass by force of arms against someone?
Does that include only intentional force or does that include accidental force, you know, accidentally, running them over with your cart or something. And so, I say that not because we have time to talk about the, the entire evolution of tort law. But just to, to contrast it with the civil law system on the continent, you have judges that are given very free reign to develop the law of how wrongs will be corrected.
And so that's how it started off, is with the, the writ of trespass
“vi et armis”, in England. and then judges over time, defined exactly the extent of claims for which you can recover the exact context in which you'll be able to get paid for somebody having hurt you.
Back in the, the early days, tort law would allow you to claim for very obvious and very violent actions against you. You know, if somebody committed a battery against you and, and hurt your body or, or broke your things, you could bring a claim for that. That was the sort of thing that tort law recognized.
But as society has changed the sorts of things that we think it's reasonable to require somebody to compensate you for have changed too. And so the law now applies not just to intentional uses of force, but to, what I refer to as negligence or, what the law refers to as negligence. If somebody accidentally hurts you, because they weren't as careful as they should have been, well you can recover for that.
And the law also now covers things or applies the law of torts, applies to things like product liability. If you're injured by a product that you bought, that wasn't designed as well as it should have been, it was designed and it was too dangerous or maybe it was manufactured and it has a defect in it that causes it to hurt you.
Those sorts of things. Now, the law has evolved to change. And what's interesting about tort law is that, in many cases it's not the action of the legislature that has pressed the law to change it has been gradually the courts saying, well, historically, maybe a claim wasn't available for this.
But the world has changed now, and, and we, the judges, have a responsibility to ensure that remedies keep pace with societal change. And so, for instance, product liability law, kind of grew out of the 1950s and sixties and some thinking about the risks that new products increasingly caused consumers that wasn't an action of the legislature in most contexts.
That was, just the court saying, well, let's expand negligence doctrine a little bit to apply to this new set of facts, this new product liability issue. where people are getting hurt by mass manufactured products. and so we want them to have recourse for that. and so that's what's so interesting about the way that tort law changes over time.
It's, it's not exclusively controlled by judges. The legislatures, can, and very often do intervene for particular changes, but judges retain the power, even today, to shape the common law to fit new contexts.
PUBLIUS: How is tort law similar to or different from other first-year law subjects?
GREG DICKINSON: Tort law is, is in some ways very obviously different from other 1-L subjects. Criminal law, these days tends to be, very statutory, very statute heavy. Same for constitutional law. You maybe don't have a lot of text, but you're working from a statute.
Whereas tort law, you're, you're working from the common law, you're using case law reasoning to see, well, what's the law in this area? And, I have to read a bunch of cases and see what past courts have thought about similar circumstances. And so one way that tort law is different is the way that it's, driven so much by prior court decisions, by case law, rather than by statute.
Another key difference, of tort law from other subjects, is that it falls into a, a domain of law called private law. Which is, the sorts of laws that govern relationships, between citizens, between regular folks. In tort law, for instance, somebody damages your stuff, you know, they bump into your car with their car and you go out and you, you sue them.
That's just a paradigmatic example of a tort, because somebody has damaged you or your property, and so the claim is, in the realm of private law between individuals. And contract law is the same thing. Contract law is also a private law subject, dealing with how folks can organize their affairs.
They, they say, we're gonna enter into a business relationship and we want it to work like this. and so it's again, a private relationship between individuals. whereas some of the other 1-L subjects, I think, again, of criminal law, and constitutional law, sometimes administrative law, which those subjects are very much about the relationship between the state, between the government, and the individual.
If you commit a crime, it's not the victim of the crime that prosecutes you, at least in the, the modern system, that's not how it works. It's not the victim of the crime that prosecutes you. It's the, the government, the government comes after you. You get a, a people versus Professor Dickinson, if I commit a crime, because it's the, the people as a collective, the state that is concerned to police criminal law.
Whereas tort law is different If you're the victim of a tort, you're the one that's responsible for bringing a claim. You're vindicating your own interest rather than the state, vindicating its collective interest in not having criminals in society. and so that's the other key difference I see between tort law and other subjects.
I think probably most law students find it to be a foreign field, but many people come in and have lawyers in the family, and so they're, they, they know a bit of the terminology, but for many, many folks it's, it's completely new. That's how it was for me in law school. I was like, well, what, what is a tort?
And, one way that you, you may have seen it, kind of out there in, in the news is occasionally you'll have a victim of a crime. Somebody gets murdered, you know, something, something terrible like that. And there's a criminal prosecution. The state comes after them and, and says, you know, we're going to prosecute you for murder.
We think you did it. and we're going to put you in prison. Maybe they are found not guilty by a jury. and so then, then you often will see another lawsuit. You'll see the family, the family of the victim sues the person who is alleged to have committed the crime.
And I always thought that was the strangest thing before I went to law school. Why is that possible? You know, that you already got declared not guilty by a jury. Why are you now facing another lawsuit? And the reason is the distinction between criminal law and tort law in the criminal prosecution, that's the state saying, we are protecting everyone's interest in not having a crime in society.
We think this is, you know, beyond, good society to behave this way, whereas in the, the suit by the family, they're saying, we think you, killed our family member. We think you did great damage to our family, through this murder. And so we're suing you in our, in our private capacity through tort law, through private law, rather than through the, the public law, criminal system.
And the, the law allows that to proceed completely independently, even if no criminal charges are ever filed, even if, even if there's a guilty or not guilty finding, the civil law tort system is completely independent.
PUBLIUS: That helps explain the difference between criminal and civil cases. Could you give us a real-world example of how something could be both a crime and a tort, and why we need both legal systems?
GREG DICKINSON: The OJ Simpson case is a great example of this distinction. This was huge news when I was a kid. just, constant media coverage. The trial was on TV, and you had this, this huge criminal prosecution against OJ Simpson who was alleged to have murdered his wife.
And he was on trial for weeks. and at the end of the day, I remember it being huge news. I was watching the TV and the jury came out and, and the jury reached a not guilty verdict. And so that seemed like the end of it. But then, then after that, there was this whole other trial.
I remember it just kind of blew my mind, because the, the family of his wife sued him in tort law for, for a wrongful death claim, saying, you, you killed this member of our family. You've taken something from us, you’ve injured us. you've wronged us in, in the sort of way that tort law corrects.
And in that case, the, the jury came back and said, yeah, you're liable for this, death. For this murder. And I just remember it being shocking to me that you could have two legal proceedings reach opposite results. And, and that was okay. But, the fact that that's okay. It helps to distinguish, very clearly, the criminal law system where the government is saying we, the people, we society, are coming after this alleged criminal, which has a very high, high standard of proof, beyond a reasonable doubt.
Versus the other context, which is a private party. The, the family of the, the alleged murder victim, coming and saying, well, we also have something of very particular interest here, and we're going to sue in tort law for wrongful death. And the burden of proof there is much different. It's a preponderance of the evidence standard it essentially asks the jury, well, do you think this happened or not?
Do you think this wrongdoing occurred or not? And because they're separate systems, criminal versus tort law, and because the standard of proof happens to be different in those two contexts, it was, perfectly fine, that the courts in those cases reached different results.
Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students.
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