Torts

Torts Articles

Palsgraf, Punitive Damages, and Preemption

Vol. 125 No. 7 The standard One-L curriculum remains heavy on Torts, Contracts, and Property, presumably on the theory that these subjects will help students learn “to think like lawyers.” Ironically, however, these are the subjects in which leading scholars are most attracted to the opposite approach: they want to think like economists, philosophers, political scientists, and historians, not like lawyers. And so it is that a basic common law subject like Torts has turned into a battleground for “law-and-” scholars, with scholars of law and economics pushing efficiency theories on one side and legal philosophers pushing corrective justice theory on the other.
Torts Articles

Duties, Liabilities, and Damages

Vol. 125 No. 7 In this Article I explore two ways of understanding damage awards. The first way, which I call the duty view, supposes that damage awards confirm existing legal duties to pay damages. According to this view, damage awards are structurally similar to awards that require defendants to do things such as deliver contractually promised goods, cease nuisances, or pay contractual debts. Like these awards, damage awards are essentially rubber stamps: they require defendants to do what they should have done already. In contrast, the second way of understanding damage awards, which I call the liability view, supposes that insofar as it makes sense to speak at all of legal duties to pay damages, such duties are created – not confirmed – by damage awards. According to this view, damage awards are structurally similar to awards that require criminal wrongdoers to pay fines.