Principles and Institutions

          Tort law is the common law of civil wrongs not arising out of contract.  Torts books often start with a definition because tort law, unlike other mainstays of the first year in the American law school curriculum, can seem strange and unfamiliar to the new law student.  Terms like “contracts,” “procedure,” “property,” and “criminal law,” are relatively familiar to students long before they arrive for the first day of classes.  “Constitutional law” will resonate with the law student who has even a passing interest in politics or public policy.  Alone among first year subjects, “torts” has not made much headway into lay usage.  Indeed, the situation is even worse than this suggests, for to the extent the term has made its way into popular usage, the results have often been terrible misuse and misunderstanding.  

          So let’s start with a definition: Tort law is the common law of civil wrongs not arising out of contract.  Let’s now take that definition piece by piece.

          We call tort law a common law field because it arises out of the body of legal norms and institutions inherited by the United States from England more than two centuries ago, when the United States won independence from the British Empire.  In England, the common law was the law of the King’s courts in the centuries after the Norman Conquest in 1066.  (The common law was the law common to those courts, as opposed to the church courts, borough courts, and the courts of the local nobility, each of which had its own law through the medieval and early modern periods.)  Today, to say that a body of law is made up of common law principles is to say that it is mostly judge-made law, though not necessarily exclusively so.  State legislatures and the U.S. Congress increasingly alter the common law of torts.  The Federal Constitution and its state-level counterparts largely (but not entirely) give the Congress and state legislatures power to make such alterations, though as we shall see constitutional constraints touch tort law in several different ways.  Nonetheless, it is still fair to call torts a common law field.  And as a common law field, torts is made up predominantly of state law, rather than federal law, though federal law has always played a role, especially in the past century, and even more so in the last two decades.  To the extent that torts remains a subject of state law, its basic norms will vary from state to state, though usually with a wide area of consensus at its core. 

          Tort law deals with civil wrongs as opposed to violations of the criminal law.  This means that tort law’s norms and institutions exhibit a cluster of features characteristic of civil proceedings, not criminal proceedings.  Private parties, not public prosecutors, typically initiate tort litigation (though the government may be a claimant in tort cases when certain harms befall government property).  The array of procedural protections for criminal defendants (many of them constitutionally required) typically does not apply to defendants in torts cases.  There is no privilege not to testify on the grounds that you might concede liability, for example.  There are no Miranda warnings in torts.  And there is no constitutionally protected right to confront witnesses.  The Federal Constitution does not require states to offer jury trials in tort cases, though most states do anyway.  The standard of proof is a “preponderance of the evidence” rather than the high threshold of  “beyond a reasonable doubt.”  Parties without lawyers are not usually offered free court-appointed counsel.  Most importantly, perhaps, the fact that tort law is the law of civil wrongs means that, with one exception, tort law does not aim to punish.  Punishment is a principal function of the criminal justice system.  The remedies in a torts case aim not to punish the defendant, but to compensate the plaintiff, almost always through a monetary award, aimed at making up for losses, and sometimes (though much less often) through an order by a court requiring that a defendant cease some ongoing course of conduct.  The exception to this rule is the doctrine of punitive damages, which consist of monetary sums awarded by a judge or jury for the purpose of punishing tort defendants, and which are awardable in torts cases involving some especially outrageous or reckless conduct.  As we shall see, even though punitive damages are rare, they have attracted considerable attention because of concerns that they punish without the institutional protections offered to criminal defendants.  The United States Supreme Court has significantly constrained the size of possible punitive damages awards in recent years.  

          Tort law is a field not merely of civil law: it is a field of civil law wrongs.  The term “tort” comes from the Latin meaning bend or twist.  (It shares the same root as the word “torture.”)  For centuries, tort law has thus been connected indelibly to the moral concept of wrongfulness.  Most areas of tort doctrine thus ask about the wrongfulness of the parties’ conduct.  Some domains of tort law purport to do away with the concept of wrongfulness.  Since at least the middle of the nineteenth century, important areas of the law (urged on by prominent jurists and commentators) have embraced so-called strict or no-fault liability doctrines that ostensibly allocate accident costs without regard to questions of wrongfulness.  In the field of product-related injuries, for example, which we will spend considerable time discussing later in this book, doctrine has moved toward eliminating fault or wrongdoing from the analysis.  Such “no fault” approaches remain the exception to the rule.  

          Last, tort law is a common law field of civil wrongs not arising out of contract.  This means that, as a conceptual matter, the obligations that tort law recognizes exist independent of any agreement between the parties.  For a person to have a legal obligation to another arising out of tort law, they need not have promised the other person anything.  The law of torts itself, not the terms of any agreement, specifies the contours of the obligations it enforces.  

          Yet this final piece of our definition, like each element of the definition that has preceded it, comes with caveats and exceptions, two of which are worth noting here.  First, many and perhaps even most torts cases do arise out of the interactions of parties who are in contractual relationships with one another, or at least in relationships akin to contracts.  Consumers of products contract with sellers to buy those products, but if they sue for product-related injuries, they often sue in tort law.  Patients of doctors enter into contracts to purchase medical services, but if they sue when those services go awry, they usually sue in tort law.  And even when there is no formal contract, there are often relationships or social roles that could be construed as setting the terms of the parties’ interactions.  Social settings such as classrooms or playgrounds, as we shall soon see, typically come with informal conventions and codes of conduct.  Such conventions and agreements are crucially important in modern tort law.  They require that we decide whether and when tort law should defer to private agreements and when it should override them, especially when they purport to abolish tort obligations altogether.  

          Second, and just as significant, contracts are vital for the resolution of tort claims because in the real world virtually every successful tort claim is resolved by a special kind of contract called settlement. Contracts of settlement discharge the underlying tort obligation and render it a contractual obligation to pay some or all of the damages the plaintiff sought.  In the everyday practice of tort law, such settlement contracts are pervasive.  No one really knows what percentage of tort claims settle, but the percentage is thought to be stunningly high, probably well above ninety-five percent of those tort claims that lead to monetary transfers.  Settlement is thus at the heart of how American tort law works.  And it offers us a segue to a central theme in this book.  For settlement is one of the wide array of social practices and institutions that constitute American tort law and that make it more than merely a formal legal definition or a dry and dusty concept in the doctrinal analysis of the law.  Tort law in the United States is a vast and highly distinctive socio-regulatory system.    

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          Tort law in the United States consists of a sprawling set of social institutions and practices.  One way to see this is to observe that formal definitions of tort law do not differ much from one legal order to another. But the institutions and sociology of tort law differ radically from legal system to legal system.  In this book, we will attend to formal definitions and doctrines.  But we will keep an especially close eye on three features of American tort law that breathe life into the field and give it a distinctive twenty-first-century character.  

          First, tort law’s doctrines and principles embody the law’s basic norms of interpersonal obligation.  The principles underlying those norms are subject to fierce debate, of course.  Tort jurists have argued for many decades about these principles, about what they are and what they ought to be.  For example, some see tort law as an opportunity for utilitarianism in action.  In this view, tort law aims to maximize the aggregate welfare of the relevant society.  Others see in tort law a commitment to the moral philosophy of corrective justice or civil recourse; in this view, tort law recognizes the obligation of a wrongdoer to repair wrongful losses.  Still others understand tort law’s motivating principle to be constructing and maintaining the basic norms of a community, or shoring up the dignity and social standing of people whose injuries might otherwise degrade them in the eyes of fellow community members.  Ideas about the principles underlying tort law are as varied as ideas about how society should be organized.  This book will introduce you to, but will not adjudicate for you, the basic controversies over tort law’s commitments.  These controversies represent live debates in practical moral philosophy.  They also help us decide the hardest cutting-edge cases in the field, cases in which there is no obvious existing answer in the doctrine and for which lawyers, judges, and juries will need to rely on the law’s underlying principles.  

          Second, tort law in the United States is the starting point for a vast and far-flung set of exceedingly important social practices, ranging from contingency fee representations and highway billboard advertising, to class action litigation and claims adjustment, to contracting and risk assessment.  We can barely even begin to evaluate the law of torts and its virtues and defects without taking these social practices into account.  We will aim to take account of the tort system by referring to statistics and numbers and through the leading sociological, game-theoretical, and historical accounts.  Indeed, to understand the distinctive features of tort law in the United States as opposed to in other legal systems, where tort law operates quite differently, these perspectives will be decisive for illuminating the real stakes in long-running controversies.

          Third, American tort law shapes and is shaped by an important array of institutions, among them insurance companies, the administrative state, state-subsidized and state-provided social welfare programs, the jury, social customs, cost-benefit analysis, the plaintiff’s bar, and more.  These institutions, along with the practices noted above, powerfully influence the law of torts in the United States.  We cannot understand the law without them.  Indeed, we cannot understand contemporary American law more generally without placing these institutions front and center, and once we see tort law this way, the field serves as an ideal introduction to the central features of our vast and multifarious legal system. 

          Here, then, is the theory of this book: understanding the characteristic features of American tort law requires exploring the field’s principles, practices, and institutions.  The benefit of approaching tort law this way is not only that we understand torts better, though that would be no small thing.  The further payoff is that this approach allows us to turn the study of tort law into more than an obligatory first-year purgatory of fusty and old-fashioned common law rules.  Instead, we take up the law of civil wrongs as an introduction to some of the most important problems faced by twenty-first-century American lawyers and lawmakers more generally.  Thankfully, we can begin to think in these ways by exploring one of the field’s simplest and best-known cases, a case that began as a classroom interaction between two boys in nineteenth-century Wisconsin.   

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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press.  Available under a Creative Commons BY-NC-SA 4.0 License.