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Does Torts Involve Economic or Moral Judgements?

Professor Gregory Dolin discusses the dual nature of tort law, balancing moral and economic judgments in cases of intentional torts and negligence. The discussion highlights how tort law aims to prevent self-help solutions and maintain social order, while also addressing the complex question of what constitutes "reasonable" action in various circumstances. https://youtube.com/watch?v=xZD_2fmrIjc

Transcript

So tort law has this both moral judgment as well as economic judgment. And I think when it comes to intentional torts, probably moral judgment, maybe it's a bit heavier weighted when it comes to negligence. Which is really figuring out what's reasonable behavior and what's reasonable is, of course, circumstance dependent. We have a tort of trespass and tort of trespass is defined as unconsented to, unpermitted, unprivileged entry onto somebody else's land, and there's no mens rea there. So the classic case that I teach is where a person enters somebody else's land for very good reason. Number one, they think it's their land. In good faith, right? So they're not trying to steal anything, they do think it's their land. And number two, they don't just come there with like force and arms. They come there with a surveyor saying, look, I think it's my land, but I'm not a hundred percent sure. So I'm going to invite a surveyor to exactly mark the line between me and my neighbor. And I'm going to be actually careful. I don't want to mark the trees. So in case you know, they happen to be on my neighbor's property, I'm going to be very, very careful to make sure, and just lay down the line and so we can live in peace. Turns out that that person was wrong and he entered what he thought was his land. He entered into a land of somebody else. And he didn't damage anything and he didn't cut down the trees. He didn't like, you know, put a mark with a knife or anything like that. He was just there briefly with a surveyor to do a good thing. And the court said: doesn't matter. Enter into a land of another is a wrong and it's a compensable wrong. So in many ways it's a moral judgment, right? So you're just entering to somebody else's property and we can debate whether or not it's a correct moral judgment, whether there should be an excuse: I'm sorry, I was wrong. Right? And now that I know I won't do it again. But it's also in some sense a economic judgment. Sofor example, that particular case arises in North Carolina, also mid 19th century, and I've been fortunate that even though I teach at the University of Baltimore, which is a Maryland state school, every so often I do have a person from North Carolina in my class and I try to coax them into answering, why do you think the court is so adamant? In fact, the court has this weird phrase in that opinion. They say: The fact that the defendant thought the land was theirs makes it worse, not better. It makes it worse. How could that be? Think about how disputes were solved in rural 19th century North Carolina, where a judge may be far away. And eventually, I guess I'm like, oh, with guns. I'm like, exactly. And what does the law want to prevent? The law wants to prevent these sort of solutions, right? Self-help. Which is of course also moral judgment, but it's also economic, right? It's bad with people, it's bad for economy, it's bad for peace. It's bad for your neighbors, right? If people just start shooting anytime they have a disagreement. Right? And I think when it comes to intentional torts probably moral judgment maybe it's a bit heavier weighted when it comes to negligence, which is really figuring out what's reasonable behavior and what's reasonable is, of course, circumstance dependent. And again, for example, it's the conversation I have with my students. They oftentimes begin at least sometimes like, well, human life has infinite value. I say, does it though? I said, okay, I'll ask you. Imagine there's a sick boy out there, like in Johns Hopkins Hospital. And you can spend the entire yearly federal budget on that boy making him better. Are you willing to do that? Realizing that you will have no money left for police, you have no money left for anybody else. You have no money left for fire department, you have no money left for national defense, for roads, et cetera. Like, well, not that much. I'm like, aha. So it doesn't have infinite value, right? It has some value. And so the question is what's reasonable? What's reasonable to spend to treat that sick boy, what's reasonable to prevent that boy from falling ill in the first place, et cetera. So again, there's obviously some morality to it, but I think economic judgment is certainly heavily weighed in the considerations of negligence.

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