Posted by The Situationist Staff on March 18, 2010
Situationist Contributor Jon Hanson and Yale Law Professor Doug Kysar are co-delivering the 2010 Monsanto Lecture on Tort Law and Jurisprudence tomorrow at Valparaiso University School of Law. Their lecture is titled “Abnormally Dangerous: Inequality Dissonance and the Making of Tort Law.” Here’s the abstract.
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At the conceptual heart of tort law rests a choice between negligence and strict liability as the default standard of care for unintentional wrongs. The prevailing American view holds that strict liability should be reserved for rare cases in which an activity poses significant hazards even after a defendant has taken all reasonable care. The types of explanations for that preference have shifted over time from a classical liberal rationale to an economic efficiency rationale. Neither of those explanations is fully persuasive on its own terms, as a careful examination of leading cases makes clear. So what might explain why courts sometimes prefer a negligence standard, when their logic could as easily have led them to a strict liability alternative?
There is growing evidence from the mind sciences that the reasons people give for their behavior and decisions are rarely causal and are often confabulatory. The field of social cognition, for instance, has demonstrated through countless experiments that “implicit attitudes” and “implicit motives,” which lie outside the purview of introspection, play a far more significant role in shaping our attitudes, ideologies, and behavior than most of us realize—or care to acknowledge. Among the most studied and influential implicit motives are the “cognitive closure” motive and the “inequality rationalization” motive.
Focusing primarily on Judge Posner’s famous and influential opinion in Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., we examine whether an understanding of those implicit processes might help explain why he held that the activity of transporting highly toxic and flammable chemicals through residential neighborhoods was not abnormally dangerous and thus not subject to strict liability (and why, more generally, negligence has so thoroughly dominated strict liability as the default standard of care). We investigate further whether such implicit dynamics left unexamined might themselves be abnormally dangerous.
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For a sample of related Situationist posts, see “Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List,” “Tort Law’s Distributional Injustice,” “The Cultural Situation of Tort Law,” “Situationist Torts – Abstract,” “Robin Hood Motives,” “The Interior Situational Reaction to Inequality,” “The Motivated Situation of Inequality and Discrimination,” and “The Situation of Inequality – Guns, Germs, and Steel.”
Posted in Abstracts, Distribution, Events, Implicit Associations, Law, Legal Theory, Public Policy, Situationist Contributors | Tagged: Doug Kysar, Jon Hanson, Monsanto Lecture, tort law | 1 Comment »
Posted by The Situationist Staff on June 7, 2008
Kyle Graham recently posted his article, “Why Torts Die” (forthcoming 35 Florida State U. L. Rev. (2008)) on SSRN. Here’s the abstract.
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Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort’s opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven’t simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.
Posted in History, Law, Public Policy | Tagged: legal history, situationist torts, tort law, Torts | Leave a Comment »