A Tale of Two Ironies: in Defense of Tort

Abstract

Charles Dickens likely never imagined that he would be quoted so often in legal discourse. Yet it is not surprising that he resonates in the world of legal theory, rich as his work is with ironies that operate on personal as well as political levels. Take, for example, A TALE OF Two CITIES, in which a revolution fought in the name of liberty turns to tyranny, and stable, tradition-bound Burkean ideals provide the means to freedom for those terrorized in the name of liberty. The seeds of such ironies have also taken root in the law of our two "cities," the United States and the rest of the common law world; therein we find a study in contrast regarding the question of how to deal with the inherently contentious relationship between free speech rights and the rights traditionally protected by tort law, many of which pertain to speech-based harm. We argue that the overwhelming dominance of constitutional free speech doctrine over common law tort principles that has taken hold in the United States has resulted in significant inconsistencies that are unlikely to crop up in legal systems that have opted to deal with the same conflict from within the common law.