Friday, November 13, 2009
George Conk (Fordham) and Wang Zhu (Sichuan University School of Law) have posted to SSRN Tort Liability Law of the People's Republic of China. Here is the abstract:
Discussion of the need to revise the basic Civil Code of China began in 1997. Like the American Restatement process it is a brick by brick effort which does not proceed with the urgency of specific operational laws.
In December 2002 a working draft, prepared by the Legislative Affairs Commission of the National Peoples Congress, was distributed for public discussion. Our attention went to the chapter stating the basic parameters of tort liability. This was translated with commentary and appeared in the Beijing Journal Private Law (Si Fa) in 2005, and, with commentary, in the Fordham International Law Journal in 2007. [Conk, George W., A New Tort Code Emerges in China: An Introduction to the Discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code. Fordham International Law Journal, Vol. 30, No. 935-999, 2007; Fordham Law Legal Studies Research Paper No. 1015041. Available at SSRN: http://ssrn.com/abstract=1015041]
The road to discussion on the floor of the National Peoples Congress has been longer than expected. It was delayed, inter alia, by the protracted discussions regarding the proposed changes in the law of property. This has given time for scholars and others to engage in discussions of the shape of the revisions.
On December 21, 2008 the Legislative Affairs Commission released a second draft. That was the subject of discussion at a July 2009 Sino- U.S. symposium. The event was sponsored by the American Law Institute and the host People's University of China (Renmin University) Law School's Center for Scientific Research on Civil and Commercial Law, in collaboration with the official China Law Society's Civil Law Research Commission.
This translation of the second draft was prepared for the benefit of the discussants at the Renmin University symposium.
What’s Wrong with Torts (II)
In my previous post I suggested that torts are legal wrongs rather than moral wrongs, and that the concept of a legal wrong is not vacuous, but instead refers to the violation of a directive to refrain from interfering with important interests of others, such as bodily integrity. In this entry, I refine the definition of torts as wrongs, again based on a paper that Ben Zipursky and I are writing.
The Relationality of Tortious Wrongdoing
Torts always involve the violation of relational directives – that is, directives as to how one must act or refrain from acting toward a particular person or class of persons. Other legal wrongs such as crimes and regulatory offenses can be relational but they need not be. The purchase and possession of a controlled substance is a criminal wrong but it is not a relational wrong and therefore cannot be a tort. A gratuitous physical attack on someone is a relational wrong that is both a crime and a tort. Inadvertence toward another’s physical well-being can be the basis for tort liability but usually will not count as a crime.
Each tort is defined so as to be a relational wrong. A libel consists of the publication, in writing, of a defamatory statement about a particular person or persons. A fraud is a deceiving of another. This relational aspect to torts is partly what Cardozo had in mind when he famously asserted in Palsgraf that there is no negligence “in the air.” Carelessness provides the basis for tort liability only insofar as it is carelessness toward a person or class of persons.
To describe torts as relational legal wrongs is not to say that torts require a pre-existing relationship between wrongdoer and victim. A driver who drives carelessly with respect to a pedestrian is subject to liability for negligence if his careless driving proximately causes physical harm to the pedestrian. That they are strangers to one another does not in any way undermine the idea that the careless driver was careless as to the pedestrian.
Torts as Injurious Wrongs
It is common today to think of wrongful conduct in terms of two components: conduct and consequences. It is equally common to suppose that one can sensibly talk about wrongfulness only with respect to conduct, not consequences. The latter are said to be a matter of brute luck. For example, the wrongfulness of negligence is said to reside in the careless conduct of the wrongdoer. What happens as a result of that conduct – the victim’s injury – is just a matter of fact that, for reasons of policy, tort doctrine has deemed relevant to setting the sanction to be imposed on the careless actor for his wrongful action.
Although common, this view is mistaken and pernicious. Torts are not wrongful acts that happen to generate adverse consequences for another. Torts are injurious wrongs. To say the same thing, the directives contained in tort law do not enjoin actions per se. They enjoin injurings of various sorts. Take battery. On the standard but mistaken view, judicial decisions defining battery instruct us as follows: “Avoid actions that you hope will cause, or know will cause, the harmful or offensive touching of another. If you don’t avoid such actions, you will have done wrong. And if it turns out that your wrong ends up causing the right sort of consequence for another, you will be ordered to indemnify that other her losses.” A better rendition of the directive contained in the tort of battery is this: “Don’t touch others in ways that tend to be harmful or are widely regarded as offensive.” On this rendering of battery, until there is a touching no wrong has been done. Likewise, the directive built into negligence law is not properly characterized as: “Act with due care toward others.” It is instead: “Do not injure someone by acting without due care toward him or persons situated like him.” Until there is injury, the wrong of negligence has not been committed.
Connecting the Dots
Torts are violations of duly enacted directives that enjoin us from injuring others by acting wrongfully toward them. They are legal, relational, injurious wrongs. Only when one understands that torts are wrongs of this special sort can one make sense of why tort law connects the commission of a wrong to the filing of lawsuits for damages and other remedies. By definition, torts are legal wrongs that have victims – the person or persons who has or have been wrongfully injured by virtue of a violation of one of tort law’s directives. This is why it is natural and appropriate for tort law to grant to the victim a right to respond through law to obtain redress for the wrong done to her. The particular way in which tort law defines wrongs and the particular form of response it permits are two sides of the same coin.
Professor of Law
Thursday, November 12, 2009
Monday's Guest Blogger is Tim Lytton. Lytton is currently the Albert and Angela Farone Distinguished Professor of Law at Albany Law School, where he teaches Administrative Law, Advanced Torts, ADR, Con Law, Jurisprudence, Legislation, Regulatory Law and Torts.
Lytton began his academic career in 1991 at Capital University Law School (Ohio), where he was an assistant professor. He was a fellow at the Hartman Institute for Advanced Jewish Studies, Jerusalem, and also a fellow in the Harvard University Program in Ethics and the Professions. Following a research fellowship at Yale University, Lytton taught at New York Law School from 1997 to 2000. Lytton joined the Albany faculty in 2000. Lytton was awarded the first annual Excellence in Teaching award in 2006.
He has published numerous articles in both English and Spanish on torts, conflict resolution, and jurisprudence. He is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (Michigan University Press 2005) and co-author of Jurisprudence, Cases and Materials: An Introduction to the Philosophy of Law (Lexis 2006). His most recent book is Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008).
Wednesday, November 11, 2009
Two L.A. residents have sued Toyota Motor Corp., alleging some Toyota and Lexus products manufactured since 2001 have been made with defective components causing sudden, unexpected acceleration. They are seeking class-action status. Toyota has focused on floor mats as the cause of the problem. However, last week the National Highway Traffic Safety Administration (NHTSA) criticized Toyota for releasing misleading information about the floor-mat investigation. The Orange County Register has the story about the suit and the NHTSA statement.
Tuesday, November 10, 2009
The Northern District of Illinois has dismissed with prejudice consumer fraud claims in a putative class action against Sears based on an alleged design defect that prevented adequate water drainage and proper self-cleaning. The court held that plaintiffs' consolidated complaint failed to meet Rule 9(b)'s heightened pleading standards. Mass Tort Defensehas more (including a copy of the decision).
The DOJ's Bureau of Justice Statistics has released a new civil justice reports on "Tort Bench and Jury Trials in State Courts, 2005." This report
[d]iscusses tort cases concluded by a bench or jury trial in a national sample of jurisdictions in 2005. Topics include the types of tort cases that proceed to trial, the differences between tort cases adjudicated by judges and juries, and the types of plaintiffs and defendants represented in tort trials. The report also covers plaintiff win rates, punitive damages, and the final award amounts generated in tort trial litigation. Lastly, trends are examined in tort trial litigation in the nation’s 75 most populous counties, based on comparable data in 1996, 2001, and 2005.
Highlights include the following:
- Together, bench and jury trials accounted for an estimated 4% of all tort dispositions in 2005.
- Punitive damages were sought in 9% of tort trials with plaintiff winners. The median punitive damage award was $55,000.
- In the nation’s 75 most populous counties, the number of tort trials declined by about a third between 1996 and 2005.
Monday, November 9, 2009
What’s Wrong with Torts?
Torts are wrongs. The word “tort” means “wrong.” A standard definition of a tort is: “a civil wrong, other than breach of contract, for which the courts will provide a remedy.” And yet the particular sense in which torts are wrongs turns out to be difficult to pin down. Likewise, the failure of many modern torts scholars to grasp the distinctive characteristics of tortious wrongs, as opposed to other kinds of wrongs, has produced a good deal of confusion.
This, at any rate, is the argument of a forthcoming article that Ben Zipursky and I have co-authored. In this blog entry, I will briefly describe one of our basic claims. A later blog will describe others. Of course, any faults in this exposition are chargeable to me alone.
The Moral/Legal Dilemma
When we think of “wrongs” we might first think of conduct that is blameworthy for violating a moral norm. To swindle someone, or gratuitously strike him, is a wrong in this full-blooded sense. Are torts wrongs of this sort? Many are, but not all. Some conduct is tortious notwithstanding the absence of culpable conduct. Think of the faultless trespass that generated liability in Vincent v. Lake Erie. Or an injury-producing momentary lapse committed by an inveterately clumsy person.
One could try to write off these examples as outliers, but they are mainstream. As such, they seem to undercut the possibility of torts being moral wrongs. So torts must be “legal wrongs.” And yet the adjective “legal” in the phrase “legal wrongs” seems to suggest that, if torts are wrongs, they are wrongs merely by fiat – that is, only because a lawmaker has decided to attach liability to certain actions. So understood, the concept of a legal wrong seems vacuous.
Many tort scholars seem to have been gripped by the moral/legal dilemma. Among them, the dominant response has been to embrace the dilemma’s second horn and treat torts as merely nominal wrongs. In turn, they argue that tort law is not law that articulates wrongs and permits responses to them, but law that allocates losses in accordance with a notion of fairness or efficient deterrence.
Our view, by contrast, is that the dilemma is a false one. Torts are legal wrongs, not moral wrongs. But it doesn’t follow that anything can count as a tort. We don’t mean to deny that lawmakers enjoy the power to regulate irrespective of whether someone has done wrong. (A tax on permissible actions, such as home ownership, is not wrongs-based: the homeowner is not being made to pay for violating a directive to avoid injuring others in certain ways.) Our point is that there is a cogent and non-trivial conception of “legal wrong” that permits torts to be defined as legal wrongs without thereby sucking the content out of the idea of a wrong.
What is this conception? Here’s a first stab. Each tort is a legal wrong in that it: (i) violates a directive issued by a competent authority that (ii) identifies acts toward others (or failures to act) that (iii) are unacceptable insofar as they interfere with (or fail to preserve) certain important interests of others. A battery is a violation of a judicial directive not to touch others in ways that tend to be harmful, or that are commonly regarded as offensive. Negligence is primarily the violation of a directive not to cause physical harm to others through conduct that is careless toward them. A trespass is an intentional touching of land that interferes with the owner’s right of exclusive occupancy. These torts can sometimes be committed without a moral wrong having been done, yet they are always legal wrongs because they are always violations of directives of a certain sort.
Just to be clear, our claim is that torts are one (important) species of legal wrong, not the only one. (Crimes are another.) Next time I’ll try to refine our account by identifying some of the hallmarks of tortious wrongs.
--John C.P. Goldberg Professor of Law
--John C.P. Goldberg
Professor of Law