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How Is the Law of Tort Organized?

Professor Richard Epstein explains how the Tort Law sets and enforces boundaries between various public and private parties. The Tort Law is basically divided into two parts that correspond to these types of parties - the law of public nuisance and the law of trespass. These laws stabilize the relationships created by Property law and enhanced by Contract law. https://youtube.com/watch?v=q_jDjrUpErI


Thus far in speaking about legal relationships we've talked about those which are in general productive. How it is that you have individual autonomy, how it is that people can acquire property, and how it is that they enter into contracts. And you could see the way in which the map filled in as all of these productive activities took place. What is key to this particular map is it sets boundaries between various kinds of parties. And the major function of the tort law is to make sure that the boundaries are not altered by strangers to their advantage in ways that will compromise the productive labor of those people who own private property or who have accessed the public property. So the law of torts essentially is divided into two parts that match this. The law of public nuisance is designed to make sure that common ways are left unimpeded. And so the law of public nuisance says that you cannot block a public right of way, and if you do, you're going to be subject to a fine. In addition, going back to 1535, the rule was if somebody suffered special damage from a public obstruction, what happened is that person could sue for hi's own private damages, even as the fine managed to cover the general losses. What an illustration of special damages? The key case is somebody is injured while driving a car into an obstacle where everybody else is just slowed down. And this division between general and special damages shows a very nice way in which you can cover what is a public remedy, by the state, and what's a private remedy, by the parties. The other half of the law of torts on the boundaries situation has to deal with private parties. And this in turn is divided into two halves. The traditional law of trespass said that no one party is allowed to enter the land of another person, no one party is allowed to take or destroy the chattel of another person, no one party is allowed to commit personal injury against somebody else. And the hallmark of trespass was the direct application of force to the personal property of another individual’s. Think about this as a boundary-altering type explanation. If you're dealing with trespass, you have to worry about nuisance. And so, analogous to the law of public nuisance is the law of private nuisance. I may not enter your property by way of trespass, but if I commit various kinds of wrongs, which smoke out neighbors, cause pollution to neighbors and so forth, these two things will also be subject to protection. So essentially what the law of Tort is designed to do is to prevent people from unilaterally altering the maps that we've seen or by changing the boundaries to their own advantage. What the Tort law does is to stabilize the arrangements that are created by property and enhanced by contract, and in the early cases it was these stranger relationships were the focus of the law. This was true on the Roman Law, and it was true of the Anglo-American Law, all the way through, I would say, in the end of the nineteenth century.

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