Of Envelopes and Legends: Reflections on Tort Law

Abstract

While contract law can be reduced to three basic questions, tort law can be reduced to only one: when harm occurs or is threatened because of a human act, is it the better societal choice to impose the loss upon the actor, or to let the loss stay with the victim? This single issue can be subdivided (we are up to two questions now, approaching parity with contract law): 1) did the actor’s conduct expose others to a risk of harm that society generally condemns (which we may call the “general risk”) and 2) under the particular circumstances of this case, do we want to impose liability upon this actor for this conduct which caused these damages to this plaintiff in this particular manner (which we may call the “specific risk”)?