PERSPECTIVES on tort law
positive (descriptive of “what is”): describes how legal rules influence behavior
normative: prescriptive of “what should be”: prescribes changes that will increase the efficiency of legal rules or institutions
Law and econs: normative (what should be) focus on deterrence (both gen and specific)
-Efficiency of courts and behavior of parties
-provide incentives for people to change their behavior up to point of econ efficiency
· -Tort reformers: claim that defensive practices to avoid groundless litigation create a tort tax on all goods and services. Use L&E args such as specific cost-containment and efficiency to argue for caps on damages.
For tort law to have a role:
· Will tort law have an effect on their behavior
o some efficient b < pl that they could take?
o Can they act in a way that is cost justified?
o If so, then we will say that the party’s action is preventable
· Tort law ineffective?
o Maybe they have insurance or are judgment proof.
o Some of these problems might be overcome through tort law
§ Parties will invest in acquiring knowledge about risk
§ Insurance cos could monitor conduct they will insure
Corrective justice: restoring balance b/w parties
· is it just that a person does/not recover or is/not held liable?
· Moral responsibility of one causing harm to repair it
· part of the reason for SL (by engaging in certain activities, no matter how carefully you engage in them, you are justly liable)->or maybe not, b/c no fault
Critical race theory:
· argue that often times there are rules that appear neutral, but when probed, reveal racial biases/etc…and the law benefits from making those inquiries
· -Eggshell theoryà used in racial abuse cases
Critical Feminism: criticizes misogynistic view of women that characterizes so
duty
o generally a person owes a duty when 1. D engages in conduct that creates a foreseeable risk of harm to a class of persons of which P is a member, or 2. D has some relationship with P that imposes a duty, or 3. there are other PP reasons.
· Breach
o Failure to conform one’s conduct to the standard required
o Did D act reasonably in relation to the risk of harm.
o Foreseeable danger does not dictate the existence of duty but only the nature and extent of the conduct necessary to fulfill the duty (standard of careàandrews).
· Causation
o actual cause or cause in fact
o proximate cause or legal cause
· actual loss or damages
STANDARD OF CARE
reasonable care
· liable if B
