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Monday, March 1, 2010

Simons on "What can tort law (and tort law scholars) learn from criminal law (and criminal law scholars)?"

As someone who has regularly taught, and written extensively, in both the fields of tort law and substantive criminal law, I thought I might suggest a few ways that criminal law doctrine and scholarship could helpfully inform tort law doctrine and scholarship.



The doctrines and plausible justifications of tort and criminal law differ significantly, to be sure.  But I want to focus on some opportunities for cross-fertilization.  So here goes.



1.     The distinction between justification and excuse

Modern criminal law doctrine distinguishes defenses of justification from defenses of excuse.  Tort law doctrine does not explicitly do so, but perhaps it should.



Suppose D1 intentionally strike V1, in order to prevent V1’s use of unlawful force against D1.  The privilege of self-defense will justify D1’s otherwise criminal behavior.  Now suppose D2 intentionally punches V2 and V3 in order to comply with coercer C’s demand that he do so (or else C will intentionally strike D2).  The privilege of duress might excuse D2’s otherwise criminal behavior, but arguably would not justify it (insofar as D2 has caused a greater harm or evil than he avoided by submitting to the threat).  Justified actors act permissibly, or even laudably.  Excused actors act impermissibly, but we cannot fairly blame them, in light of the difficult circumstances they confront or their unusual personal qualities.


Interestingly enough, tort law pays little heed to this distinction.  This is in part because tort law is less tolerant of excuses than is criminal law: insane defendants (who would be excused in criminal law) are still responsible for their torts, and those with below-average mental capacities are held to the higher standard of a person with normal capacities.  But what does tort law say about excuses based on extraordinary difficult external pressures and circumstances (such as duress) rather than on unusual personal incapacities?



The “emergency doctrine” does permit some consideration of the difficulty circumstances that a defendant encounters.  Suppose motorist D3, suddenly faced with a child immediately ahead in the path of his car, must decide whether to swerve to the left, towards motorist V4, or to the right, towards a concrete barrier; he swerves to the left, harming V4.  In V4’s lawsuit, the court may instruct that the jury should consider the emergency circumstances in deciding whether D3 was negligent.  But is the ultimate test whether D3 made the right decision in light of the facts available to him and the brief time for making a decision?  (This amounts to a form of ex ante justification.)  Or is the test instead whether, even if he made the wrong decision from an ex ante perspective, it is unjust to fault him in light of his understandable feeling of panic or an understandable instinct for self-preservation?  (This amounts to an excuse.)

If it is proper for tort doctrine to reject excuses of mental incapacity, shouldn’t tort doctrine also reject excuses of external circumstances?  But the issue is almost never directly addressed in tort doctrine or commentary.  (With respect to intentional torts and the earlier examples of D1 and D2, the Second Restatement recognizes the justifications of self-defense and necessity, but it does not recognize an independent excuse of duress.)


2.     Element analysis[1]

One of the great analytic breakthroughs of the Model Penal Code was its adoption of what has been called “element analysis.” Instead of characterizing a crime as one of “intent” rather than “negligence,” or specific intent rather than general intent, the Code requires separate analysis of the culpability or fault that is required for each distinct element of the offense. Thus, rape is not simply an “intentional” crime; it is a crime requiring intention to have sexual intercourse with the victim, plus some other level of fault (e.g. recklessness or negligence or even strict liability) as to whether the victim failed to consent. That other level of fault needs to be separately analyzed and justified.



This insight has not been fully grasped by those who make tort doctrine. A given tort might have many elements, and the level of fault for these different elements need not be identical. Consider trespass to land. Under the Restatement Second, an actor is liable for trespass  “if he intentionally . . . (a) enters land in the possession of the other.” Although the entry on land must be intentional, defendant remains liable for any mistake about whether he owns or is otherwise entitled to enter the land, even a reasonable mistake. Thus, intent is the requisite level of fault for one element of the tort (entering a particular piece of land); while strict liability is the requisite level of fault with respect to other elements (whether the land is in the lawful possession of another, and whether the trespass will cause harm to another).  So it is a crude and misleading overgeneralization to characterize trespass as an “intentional” tort, insofar as it also imposes strict liability as to other elements.  It would be much more perspicuous if trespass doctrine more explicitly identified and highlighted these different fault requirements.



The same problem arises with the intentional tort of battery.  Courts differ on whether the defendant (1) must simply intend to cause a contact, or (2) must additionally intend to cause harm or offense.  The usual formulation, “intentionally causing a harmful or intentional contact,” is regrettably opaque.  A more precise formulation could clarify whether the court  intends to endorse the “single intent” (1) or “dual intent” (2) approach.  It could also clarify that even under the single intent view, battery actually has a second fault requirement: a requirement of negligence as to the victim’s lack of consent. If the defendant believes that the victim consents, but is negligent in not realizing that she does not consent, he is liable for battery. (But if he is reasonable rather than negligent in believing that she consents, then, under the apparent consent doctrine, he is not liable.)  And, if it were better understood that even the “single” intent version of battery employs two fault requirements—intent to contact plus (at least) negligence as to the victim’s lack of consent—this might allay some of the concerns of those who support the alternative dual intent view because they fear that the single intent view is too hard on defendants.



3.     Mixed theories

Consequences matter.  But rights, desert, just distribution of risk, and fairness matter, too.  How do we combine consequentialist justifications (including utilitarian and deterrence-oriented views) with nonconsequentialist ones (including deontological and virtue theories)?



Some years ago, Gary Schwartz noted[2] that criminal law scholars, most famously H.L.A. Hart, were quite comfortable with “mixed” theories, theories that justify the scope, content, and limits of the criminal law by combining utilitarian considerations (deterrence, incapacitation, rehabilitation) with the nonconsequentialist imperative of affording wrongdoers their just deserts.[3]  Why, he asked, are tort scholars largely unwilling to endorse analogous mixed theories that combine utilitarian (especially deterrent) considerations with the nonconsequentialist imperative of securing corrective justice?  Why do most scholars align themselves with one camp rather than the other?  Isn’t a peaceable compromise possible?



His questions remain pertinent today.  It is difficult to deny that the shape of tort liability rules at least sometimes will affect the behavior of primary actors and victims, and it is plausible to believe that deterrence is one important function and justification of tort rules.  At the same time, the structure of tort litigation and the actual content of tort doctrine strongly support the explanatory and justificatory value of corrective justice, civil recourse theory, and other nonutilitarian approaches.



Indeed, even if one doubts the deterrent value of tort liability rules, many tort doctrines, especially negligence doctrines, require attention to “consequences” and “aggregation.”  How can one talk sensibly about what risks a reasonable person would or would not take without talking at all about the expected consequences of various types or levels of precaution, and without somehow combining (at least some of) the advantages and disadvantages of taking each precaution?  I have tried my hand at an answer[4] to this question, which is notoriously difficult.  But the question does seem to demand a “mixed” answer.



Finally, I recognize that any talk of “mixing” consequentialist and nonconsequentialist perspectives sounds a bit too much like the highly discretionary task of “mixing and matching” different parts of one’s wardrobe.  Is it coherent to combine these perspectives, or is any effort to do so doomed to failure, as an unprincipled, arbitrary concatenation of radically dissimilar values?  I do believe that a combination is intelligible—e.g., threshold deontology, or nonconsequentialism as a Nozickian side-constraint of pursuing consequentialist values.  And some recent work along these lines is very promising.  But the resulting mixture is admittedly messy and complex.  The purist views of wholehearted consequentialists and unqualified nonconsequentialists have the great virtue of simplicity.  Nevertheless, I think we should prefer a complex truth to a simple approximation or fiction.


- Ken Simons

Boston University School of Law

The Honorable Frank R. Kenison Distinguished Scholar in Law and
Professor of Law


[1] This section is drawn from Kenneth W. Simons, "A Restatement (Third) of Intentional Torts?" in Symposium, 48 Arizona Law Review 1061 (2006).

[2] Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801(1997).

[3] For example, retributive principles might set the upper limit, or both the upper and lower limit, on permissible punishment, while utilitarian concerns dictate the appropriate punishment within that range.

[4] Kenneth W. Simons "Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy," in Symposium, 41 Loyola Law Review  (2008).

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One can have some sort of satisfaction if he/she cannot get the kind of justice they deserve when it comes to a defendant committing and being convicted of a crime against a victim. In Tort Law, one only needs a majority of the jury to vote with the plaintiff in order to be awarded damages in accordance to a unanimous jury for a criminal trial.

Posted by: New York City Defense Attorney | Mar 1, 2010 1:21:05 PM

Yes,I agree with you.In China,we don't have element theory for torts originally,then we adopted criminal element analysis .And I believe that there can be common element analysis theory for crimes and torts,because crimes are just serious torts essentially.I mean,torts are activities that harm others rights.

Posted by: Lutong | Apr 5, 2010 8:04:39 AM

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