Justifying and Categorizing Tort Doctrines: What Is the Optimal Level of Generality?

UC Irvine School of Law Research Paper No. 2022-03

Journal of Tort Law, Vol.14, No,2, 2022, forthcoming

24 Pages Posted: 13 Jan 2022

See all articles by Kenneth W. Simons

Kenneth W. Simons

University of California, Irvine School of Law

Date Written: January 11, 2022

Abstract

This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only 'intermediate' justifications for their decisions (such as dignity, fairness, or reasonableness), rather than 'foundational' ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as 'dignitary' torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all 'dignitary' torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.

Keywords: torts, tort theory, intentional torts, negligence, justification, restatements, intent, battery, consent, dignity

Suggested Citation

Simons, Kenneth W., Justifying and Categorizing Tort Doctrines: What Is the Optimal Level of Generality? (January 11, 2022). UC Irvine School of Law Research Paper No. 2022-03, Journal of Tort Law, Vol.14, No,2, 2022, forthcoming, Available at SSRN: https://ssrn.com/abstract=4006612 or http://dx.doi.org/10.2139/ssrn.4006612

Kenneth W. Simons (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Room 3800H
Irvine, CA 92697-1000
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
36
Abstract Views
106
PlumX Metrics