Thinking Citizen Blog — The Orion of Torts — What Do You Think Is Most Important for Every Thinking Citizen to Know?
Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day
Today’s Topic: The Orion of Torts — What Do You Think Is Most Important for Every Thinking Citizen to Know?
Or for that matter, what is the coolest thing you ever learned in law school or afterward about torts that you would like to share with the rest of us? For those new to the blog, Orion is my shorthand for the most important things worth remembering — in order. Experts — please chime in. Correct, elaborate, elucidate.
ORION’S BELT (1–3) — what double jeopardy does not mean, two different standards of proof, judge-made not legislature-made law
1. Torts are private, not public wrongs. Cases pit one private party against another. In a criminal case, a private party (the defendant) is pitted against the state. Despite the principle of no double jeopardy, you can be charged for a crime both by the state and another private party — two separate trials. The most famous instance of this were the separate trials of OJ Simpson (above) — the criminal one for murder the civil one for “wrongful death.”
2. The standard of proof is lower in a tort (civil) case than in a criminal case. In a criminal case for murder the standard is “beyond the shadow of a doubt” whereas in a tort case the standard is “the preponderance of the evidence.”
3. Tort law is judge-made law, that is “common law.” Whereas criminal law has made the transition from judge-made common to codified, legislature- made law, tort law has not.
THE TOP TWO STARS — THE GEOGRAPHY OF TORTS, THE HISTORY OF TORTS
1. Tort law can be visualized as an ocean of negligence (where your culpability is a function of “fault”) with a large island (imagine Australia or Greenland) of strict liability (where you are liable for all harm caused to another regardless of “fault”), a small archipelago of intentional torts (where you actually intended the harm. The last category included Simpson’s case.
2. History: two hundred years ago strict liability was the dominant rule, but with industrialization and urbanization and the explosion of unintended conflicts, “negligence” unseated “strict liability.” However, in the 20th century strict liability has made a comeback in the case of product liability cases involving most notably pharmaceuticals.
THE BOTTOM TWO STARS — TORT REFORM AND NO DUTY TO A STRANGER
1. Tort reform is about reigning in exorbitant damage awards by juries as in the infamous McDonalds coffee case where a jury awarded $2.7 million to Stella Liebeck for serving coffee that was too hot. Methods include legislative caps on awards — whether absolute dollar caps or multiples of the compensatory damage awards. Another method would be for the judge to threaten a re-trial unless the jury comes up with something more reasonable. This is called “remittitur” and was used in the McDonalds case where the award was reduced to $600,000.
2. No Duty to a Stranger. There is only fault if there is a duty. Apparently, you have no legal obligation to help save the life of a baby drowning in a puddle. Is this right? Some potential Good Samaritans may not take the risk of helping someone because of the fear of being sued themselves if they botch the attempt. Some states have Good Samaritan laws to incentivize more people to take that risk. A related issue of bystanders — the most infamous case being that of Kitty Genovese (photo above).
FOOTNOTE — The Four Titans of Tort Law
1. Benjamin Cardozo (1870–1938) — a deep thinker, see 11th link below. The first photo above is of Cardozo.
2. Learned Hand (1872–1961) — not a made up name; pioneer in field of law and economics. Second photo above
3. Roger Traynor (1900–1983) — pioneer in field of defective products (eg. Escola Bottling decision)
4. Richard Posner (1939 — ) most cited legal scholar of the 20th century
NB: If you are a huge fan of one of the above, please chime in with the story of why and perhaps your favorite quote.
United States tort law — Wikipedia
Liebeck v. McDonald’s Restaurants — Wikipedia
Murder of Kitty Genovese — Wikipedia
Benjamin N. Cardozo — Wikipedia
Benjamin N. Cardozo Quotes (Author of The Nature of the Judicial Process)
Learned Hand Quotes (Author of The Bill of Rights)
Richard A. Posner Quotes (Author of How Judges Think)
QUOTE OF THE MONTH
“Whenever you are wrong, admit it. Whenever you are right, shut up.” - Ogden Nash
For the last four years of posts organized by theme:
PDF with headlines — Google Drive
Two special attachments below:
#1 A graphic guide to justice (9 metaphors on one page).
#2 “39 Songs, Prayers, and Poems: the Keys to the Hearts of Seven Billion People” — Adams House Senior Common Room Presentation, 11/17/20
Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.
This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.