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 Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Dolin, thank you for joining us today. In your view, does tort law primarily involve economic judgments, moral judgments, or some combination of both? I mean, I think it's both. So for example, 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 a very good reason. Number one, they think it's their land. In good faith, right? So they're not trying to steal anything. They actually, 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. Entering 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 an economic judgment. So this, for 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 says, 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? And eventually, like think about how disputes were solved in rural 19th century North Carolina, where a judge may be far away and eventually, it gets to like, oh, with guns. I'm like, exactly. And what does the law want to prevent? Law wants to prevent these sort of solutions, self-help. And so, which is of course also moral judgment, but it's also economic, right? It's bad for people, it's bad for economy, it's bad for kind of, for peace. It's bad for your neighbors, right? If people just start shooting anytime they have a disagreement. So tort law has this both moral judgment as well as economic judgment. And, 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, so 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. Is that, are you willing to do that? Realizing that you have, 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? How, what's reasonable to spend to treat that sick boy? What's reasonable to spend to prevent that boy from falling ill in the first place, et cetera. So that, again, there's obviously some morality to it, but I think economic judgment is certainly heavily weighed in the considerations of negligence. How does tort law incentivize certain behaviors? Is it primarily through economic mechanisms? Torts incentivizes by essentially saying if you don't meet the behavior and you cause damage, you'll pay, right? So it's an economic stick. Now, obviously, sometimes people behave badly. But you know, as we've said on the playground since we were three, right? No harm, no foul, right? You're speeding. And again, I'm leaving aside the fact that police can stop you and give you a citation because that's kind of criminal or quasi criminal. But you might be speeding. You might even be driving home drunk. You might be drunk and speeding, but you are lucky you don't hit anyone. You don't injure anyone, so tort law doesn't come into being, but because should something happen, you will pay, hopefully that incentivizes you to think twice before beginning to engage in that behavior. Tort law doesn't actually prohibit you from doing anything. Again, that's the function of criminal or other civil like administrative type, laws and regulation. Tort law says absolutely nothing about whether it's permissible to drive home drunk. Tort law simply says if you drive home drunk and you injure someone because that's unreasonable behavior, right, you have to pay, you have to compensate. Tort law doesn't prohibit you from going around the street and punching people in the face. That's criminal law, which is also, that actually prohibits assault and battery. But tort law says if you do that, you'll pay for the injury. This goes back to the very first case we discussed about battery. You'll pay for the injury, even if you didn't foresee that it's gonna be, the injury, it's gonna be very great. Kind of this notion of an eggshell plaintiff. So even if you are going around just flicking people's noses, but without your knowledge, you hit somebody, for example, who has hemophilia and now that you can't stop bleeding of that person, now that person has hundred thousand dollars hospital bill. Well, all you did is kind of flicked his nose, well, you shouldn't do that. There's an easy solution to it, and that solution is what your mother told you when again, you were three. Keep your hands to yourself. So that's how torts incentivizes things it tells you you are on the hook for injuries you cause, even if you could not foresee the scope of those injuries. You take your victim as you find your victim. If your victim happens to be a hemophiliac, your victim happens to have a brittle bone disease. Your victim happens to be, you know, particularly vulnerable to certain things. Well, maybe you should have thought of it before you were driving home drunk or going around, hitting people in the face. How much would say the function of tort law is to compensate specific victims versus a broader societal purpose? The primary function of tort law, it allows the wronged individual, the injured party, to seek compensation from the injurer, but in many ways it is in some sense regulatory indirectly, right? So this idea that, again, if you engage in some bad unreasonable behavior and bad outcome results from it, you will have to pay. And so hopefully that sends a message to you like, Hey, am I willing to pay the cost associated with my unreasonable behavior? And if the answer is yes, well go ahead and do it. I mean, now we eventually might ratchet up the cost because we might eventually not only force you to pay compensatory damages. If we think you're behaving particularly egregiously, we might also force you to pay punitive damages, above and beyond what it costs to actually compensate the victim. Just actually to tell you, we will not tolerate that sort of behavior in society. But hey, if you're Elon Musk and have basically unlimited amount of money, you know, you can go ahead and keep doing it, and you can just keep paying. So, it's not, again, it's not directly regulatory, it doesn't necessarily prohibit anything. But the idea is hopefully eventually the cost for you of doing something will be so high that you will stop doing it. How does the tort system contribute to a well-ordered society from an economic perspective? The tort system helps society stay well-ordered because, from an economic perspective, it makes the person engaged in any given activity from anything from driving to, you know, to building on their own land to practicing medicine to whatever, it is that they do, basically gather the benefits of that activity. So if you're practicing medicine, you get payments from your patients, you get potential respect from your colleagues and the world. But you know, you are human. Doctors are humans, lawyers are humans, you know, house builders are humans and everyone makes mistakes. You don't have to be malicious about it. People make mistakes. You know, you may be driving a car and not because you're drunk or anything, but completely accidentally hit gas instead of a brake. It happens; but you got some benefit from driving a car. You got to wherever you were going. You get to where you're going faster and more efficiently, so you have to bear the cost of that, of occasionally making a mistake, of occasionally performing wrong surgery, or occasionally hitting the wrong pedal. And by making sure that you pay for your mistakes, the idea is because you have to pay ex post, after the fact, you will likely be more careful ex ante and so if you know that, hey, if I'm just pressing pedals, willy-nilly, if I go into surgery and don't check which limb I'm operating and I just start cutting, bad things might happen, and those bad things might lead to bad consequences, not just to the person, the third party, but to me because I'll have to pay money or, you know, on a criminal side, I might lose my license or whatever else. And so hopefully you will make fewer mistakes. Could you tell us a bit about the historical development of tort law and how it has evolved over time? And, in terms of the historical aspect of it, it can go all the way back to the Code of Hammurabi, right? Kind of this whole idea like, look, if you commit a particular error, right? Kind of this idea, eye for an eye. And so, you know, the idea is like, well if you know that you might lose your eye, if you just swing your fist too wildly and put out somebody else’s out, maybe you will not swing your fist that wildly. And, but at the same time, if you go back to those old ancient texts, even then you recognize that not all bad behavior or not all lack of care is equal. So, for example, they treated injury to an animal differently, of course, than an injury to a human. They treated injury to a slave differently from injury to a free person; treated injury to a woman differently from an injury to a man. Now, not to say that those were right distinctions, and obviously we no longer do those specific distinctions,you know, we still have those things saying like, look, if you, you know, we'll give you more leeway in some situation than in other situations because in some situations kind of the range of reasonableness is broader than in other situations. One of the challenges in tort law is how to adequately compensate victims. How do we address cases where monetary compensation seems inadequate for the harm suffered? Well, unfortunately we haven't come up with any better way than financial compensation and although it sounds weird to say, well, you know, a doctor accidentally cut off a wrong arm, so you know, he'll just give you $20,000 or $200,000 or whatever it is and call it even, obviously if you sort of go around the street and ask people, hey Would you let me chop off your arm randomly if I give you $200,000? And most people will say, no, you are crazy. But unfortunately there is no better way of doing things. Now sometimes we get close to the, you know, to kind of quote unquote perfect justice because if somebody destroyed, merely, or again, your car, and you don't have any particular emotional attachment to this car, you know, just people give you money. Go buy a new car. No big deal. But after somebody takes, you know, takes off a wrong arm, bigger problem, right? Somebody destroys through their carelessness, your prized possessions, your baby pictures, right? Or something that you know is the only item that's left from your parents, and it's particularly important to you. We can try to compensate for it, but it's obviously not the same. But, you know, absent building a time machine, there's really, unfortunately no better way. So justice isn't perfect. In some sense that's true in all areas of the law, right? If somebody commits a crime, putting that person in jail doesn't actually make the person that the criminal assaulted, unassaulted right? It's not perfect justice, but the that's what we, that's kind of the best we can do. How do you view the relationship between tort law and government regulation? Do they serve complementary purposes, or is one approach generally superior? The question of regulation versus torts, comes up of course often. In my personal view, I think that torts is better, in part because torts is more flexible. You can kind of, you can look at the situation after something happened, so it may not have been necessarily foreseeable. Something new has developed and said, like, given, all we know was the person behaving reasonably at the time. Whereas the regulations generally tend to be inflexible, the regulations do look at kind of what happened before and based on what happened before, try to predict the future. And as you know, as one of the greatest philosophers of the 20th century once said, Yogi Berra, that it's very hard to make predictions especially about the future. And so regulations are somewhat less flexible. I don't think that means that there's no room for regulation because there may be information asymmetries. There may be situations where there's externalities where you may not necessarily capture the harm done to a broad set of individuals, through a single tort lawsuit. You may also have a situation where absent regulation harm will be done and there will be a lot of harm, but there'll be very little harm to each individual where a lawsuit may not be worth bringing, right? Because litigation is expensive. And so absent a regulatory regime, the person will be able to do all sorts of bad things, and yet nobody will be able to hold them accountable. They'll be able to hold 'em accountable only on paper, but nobody actually would go to court to try to enforce it. So I think both of their places, both of their limitations, and one big limitation of regulation is that it's, again, it's hard to make predictions as to what the world is gonna look like tomorrow. And one limitation of torts is that, as we talked about before, money is the best we can do, but money doesn't really compensate you for a lost arm. It doesn't really compensate you for, you know, time that you've lost spending with your children, et cetera How does law and economics help us do a better job of calculating proper compensation? Has law and economics changed our views about tort law? So law and economics may be a new system and whereas torts is, you know, one of the oldest way of solving human problems. Oftentimes when I view law and economics, it's not a new way of solving the problem. I oftentimes think of it as a new way of explaining a solution we've had for hundreds of years and why that solution actually makes sense. And I think judges have been doing law and economics and torts, for hundreds of years without ever calling it law and economics. I think they've been, you know, for example, the idea that if you punch somebody in the face, unprovoked and that person happens to have a particular health condition where they sustain way more injury than you would otherwise expect. You're still on the hook for paying for all of that injury. Right. It's essentially a law economics answer. It's not just a moral, it is also a moral judgment, but essentially a law and economic answer because it is more efficient to tell you, keep your hands to yourself and if you don't, you'll pay for all the damage you cause, right, than to try to kind of, to say, well, the person who was sick, you know, that's kind of his own problem, he should bear that cost it, that just makes that person less able to participate in the economic activity of society, et cetera. So I think judges have actually been doing law and econ for a long time. We just have a new way of explaining what they were doing. And to the extent of course, where it doesn't make sense, we can then debate whether or not old solutions ought to stay with us because they're, you know, old and tried and true, or whether we should move away and do something different. But I actually don't think of law and economics as something radically new, in terms of providing solutions. I think it's maybe a new, not even a radically new, new way of explaining solutions. You've given us a very thoughtful theoretical perspective. Could you share some insights about how tort law works in practice, perhaps drawing from your personal experiences? So one thing I think should be kept in mind when talking about torts, but I think law in general that there's kind of “book law” and there's “real world law.” So, and I think kind of, I gave a bit of preview of that when we talked about cases where nobody wants to litigate because they're just too small. So, and that comes up all the time. So for example, lots of medical malpractice cases are never brought to trial. They're never filed. But that doesn't mean they're now no injured parties. And I think that also in some sense goes back to this question of, is this about morality or is this about economics? and I think we should remember this. So for, and I can give example from my own life. So, my grandfather who passed away about eight years ago, you know, he was, he was old and so this was not unexpected. But the reason he passed away at that time, is because while he was in a hospital, the doctor missed a developing urinary tract infection, which then disseminated. And because my grandfather was already in a weakened state, ultimately, he succumbed to it. The doctor made a mistake. But none of us ever thought about suing him for a variety of reasons. But even if we did, given the fact that at that point my grandfather was in his mid eighties, given the fact that he was not working, so he was not necessarily bringing income, given the fact that by that point my grandmother had already passed away as well. So there was, for example, no loss of consortium. So given all of those things, was there an injury? Of course. Was there an error by the doctor? Of course. Right. Was there harm done to my grandfather and to our family? We miss him dearly, of course, but no lawyer would take this case because the, even if we managed to convince a jury that there was an error and that outcome would've been different but for that error, there's no kind of, there's very little compensation to be had. And I, so I think kind of this idea ties up, this example I think ties into a lot of things. It's like, is it moral or is it economic, is it different between like, again, book law or sort of street law, is it, kind of, what, you know, who gets compensated for what, is money necessarily the best way of judging this thing. So I think there's a lot of things tied into it and I think we ought to keep in mind when talking about theory, philosophy of law, talk about these old 19th century railroad cases, to kind of remember that there are actual real people involved, right? That there are real consequences and the solutions we have are not necessarily perfect and will not always work. And, but we try our best. 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. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it's released. You can also go to no86.fedsoc.org for lectures and videos on Federalism, Contracts, Jurisprudence and more. Thanks for listening. See you in class!