Torts 1 Outline
Professor Lee
Fall 2012
Groups of Arguments
1. Consider your audience
a. Positivist or Realist?
i. Realist (Public Policy)
1. Subjective, policy driven, competing values
2. Everyone brings to the meaning of law their own values
ii. Positivist (logical application of principles necessarily underlying tort law)
1. Objectives, indisputable
2. Everything has black and white answers
2. Similar Interests Treated Similarly (strategy for choosing argument before trial)
a. Interests discussed by the courts further define holdings and the rule
i. Give structure to it
b. Benefit of Similar Interests Treated Similarly (SITS) is in determining the value of the case to future cases and their potential holdings. Use the following guidelines for evaluating SITS
i. Value of case: SITS
ii. Link: If you want to further that value, you should define element
iii. Explain link:
1. Interest #1 and how it is treated
2. Interest #2 and why it is like Interest #1
3. Treat them similarly
iv. Therefore: after evaluating case and interests through the above steps, you can reach a conclusion or explanation for the holding.
Values to argue
1. Similar interests treated similarly
a. No liability without fault
i. McGuire v. Almy (p. 25)
1. Value: No liability without fault
2. Rationale: People with mental illness cannot intend
3. Link: if you accept that value, then you must define the law as I have indicated
4. Explanation
a. Fault requires the ability to understand the consequences of our actions.
b. The ability to understand the consequences of their actions is something that people with mental illnesses don’t have
c. Therefore, people with mental illnesses cannot be at fault
5. Therefore: they can’t be liable.
b. There is liability for acts done
i. Link: If you accept that value, then you must define the law as I have indicated.
1. People with mental illness can do acts
2. Therefore, they can be liable
ii. Therefore they can intend.
2. Social Policy Deterrent ( Used to achieve social goal)
a. Goal: Social Goal: Society wants to deter people with mental illnesses from hurting others
i. Link: If court wants to further this goal, then the court should define intent to include people with mental illness
ii. Rationale:
1. Defining the rule in this way will make these people liable
2. If we make them liable, that liability will cause them to change their behavior (so they don’t hurt others)
ne contact in this way.
c. Explanation:
i. You will show why it is easier here. àThis does; This Doesn’t.
1. EX) This rule is easy because you can see when two objects physically touch. Nonphysical contact is not observable and therefore, more difficult to determine.
d. Application
i. Here is when you apply your interpretation of the rule.
1. What does contact require? It requires body to be physically touched. ß Apply this
a. Ex) John’s body was not physically touched because the soundwaves did not physically touch him.
e. Misc. Ex: (example above is the better one)
i. People with mental illness can intend is an easy rule because it doesn’t make courts look into or determine mental capacity and we know from criminal law determining mental capacity is difficult. (McGuire v. Almy (p. 25, 26 notes in pink))
5. Intent can transfer across some torts
a. Battery (harmful contact)
b. Assault (imminent apprehension)
c. False imprisonment
d. Trespass to chattels (interference with personal property)
e. Conversion (destruction of ownership)
f. Trespass to land (real property)
