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Abstract:
In this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes' focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. In particular, modern scholars tend to view torts either as a means of deterring injuries or of achieving corrective justice.

I argue that both history and doctrine suggest that the attempt to unify all of torts is futile. From a historical perspective, what we now label tort law was created on an ad hoc basis as problems developed in communities in medieval England. The law was developed practically to resolve those problems, not to embody any vision of justice. Furthermore, tort law was the common law's residual area of civil liability, and was not conceived to be a coherent subject matter. Perhaps as a result, concepts from other areas of law have significantly influenced tort doctrines. These imported concepts are based on goals foreign to, and not necessarily consistent with, tort goals.

Tort law's doctrine also appears hostile to unification. In assessing whether doctrine might support a unified theory of torts, I compare two doctrinal areas for consistency. If a unified theory of torts cannot encompass two discrete doctrines of torts, of course it cannot encompass all of torts. A cursory examination of automobile accidents and medical malpractice reveals significant differences of reciprocity of risk, causation and the incursion of doctrines foreign to tort law. Based on the comparison, it appears that each of the three traditional tort goals - deterrence, corrective justice and compensation - may be problematic in one doctrine or the other. I thus conclude that a unified theory of torts is not plausible.

Based on this conclusion, I argue that scholars should devote their energies to examining the pluralist nature of tort law. In particular, I urge scholars to focus on the contexts of torts. By focusing on the contexts, instead of ignoring them for the sake of cohesion, scholars may be able to determine under what circumstances a particular torts goal should be emphasized.

Abstract:
Most modern torts scholars adopt a monistic view of torts, arguing that the tort system can be justified or explained by reference to a single rationale. In contrast, few torts pluralists, scholars believing the tort system is based on multiple rationales, have put forward a general theory or framework for tort law.

A pluralistic view of the tort system poses significant questions about the relationship among the rationales. Do the rationales work together as a seamless whole? Do the rationales conflict? If they conflict, how does one choose among them? Does the entire system devolve into adjudicative relativism, whereby a judge has no rational basis for choosing among the rationales in the case of a conflict?

In this Article, I argue that the value pluralism of Sir Isaiah Berlin, the late English philosopher, provides the framework in which the torts rationales interact. A Berlinian understanding of tort law consists of four propositions. First, the torts rationales are truly distinct; each of them conveys a different idea about the purpose of tort law. Second, these rationales are objective. Each torts rationale exemplifies a legitimate purpose for human beings to pursue. Third, the torts rationales have the potential to be incompatible. Indeed, the theories often entail opposing conclusions. Finally, the torts rationales are incommensurable - incapable of being ordered in a timeless hierarchy.

This leaves torts judges, in any given case, in the position of having to select among rationales, which cannot be arranged in a consistent hierarchy and may be incompatible. Berlin has little advice about the issue of choosing among options as a general matter. However, his comments on choice indicate that context is by far the most significant factor in making the decisions. If the torts rationales are "unrankable in the abstract," context allows judges to rationally choose among them. Thus, the lesson for scholars is to focus on the contexts of torts. Although this contradicts the current monistic trend in torts scholarship, with its concomitant de-emphasization of the particular, the emphasis on context is completely consistent with the common law itself.

Abstract:
When a former student offered to let me see his grandfather's Torts notebook, I was intrigued. The 70-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938-39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.

Because Prosser's papers likely have been destroyed, Merrifield's notebook offers a unique "behind the scenes" look at Prosser during a very significant period in his professional development. During 1938-39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser's article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser's place in the intellectual history of twentieth century legal theory. Prosser's 1938-39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser's realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law's most influential thinkers.

This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser's seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.

Torts, Prosser

Abstract:
There is widespread agreement that tort (and criminal) law developed historically as an alternative to violence. Given that pedigree, it is not surprising that preserving the peace would be pursued as a goal of punitive damages, as is claimed in several cases and law review articles. The precise relationship between peace and punitive damages is left relatively vague. However, a recent article by Professor Anthony Sebok can be used to fill in the details.

Professor Sebok constructs a private-law theory of punitive damages that emphasizes two features. First, punitive damages are awarded for violations of only a certain kind of right: the right to dignity. Second, punitive-damages awards are personal punishment. This Essay argues that those features can also be used to explain punitive damages' role in preserving the peace. Violations of the right to dignity are the most likely to be met with violence. Furthermore, the punishment's personal nature maximizes the appeal of the legal system as an alternative to violence. However, three significant changes-the increased reliance on criminal law as a means of social control, the advent of corporations, and the establishment of a general social norm against violent solutions to serious conflicts-have substantially decreased the necessity of a pacificatory function for punitive damages.

punitive damages, peace, Sebok

Abstract:
Crimtorts is a word coined by Professors Thomas Koenig and Michael Rustad to describe the middle ground between criminal and tort law. Crimtorts is not a new body of law or even a new cause of action. Rather, crimtorts is an explicit recognition that criminal law principles of punishment and deterrence have been assimilated into tort law. The extent of the assimilation and its effects on the tort system are issues that merit robust consideration.

The Crimtorts symposium, held at the Widener University School of Law on February 25, 2008, took up this challenge. The participants were Professors Martha Chamallas, Mark Geistfeld, Keith Hylton, Thomas Koenig, Jeffrey O'Connell, Michael Rustad, Sheila Scheuerman, Anthony Sebok, Catherine Sharkey, Kenneth Simons, Byron Stier, and Frank Vandall. This Introduction summarizes the papers that were written in conjunction with the symposium.

crimtorts, torts, punitive damages