TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, May 13, 2008

Why Torts Die

Kyle Graham recently posted his forthcoming article, "Why Torts Die" on SSRN.   The abstract provides:

Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort's opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven't simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.

I read an earlier draft, and it is a very interesting read.   Both Ted Frank and Walter Olson at Point of Law comment on the article.


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This article casts suspicion on all torts today. They all be pretextual (false use of the law).

1) Yet, I don't know why it takes 74 pages to miss the self-evident. Those without assets are judgment proof.
They missed the Rent Seeking Theory as Grand Unifying Theory of Not Just Appellate Decisions, But All Lawyer Decisions (the so called GUTNJADBALD).

2) Here is something else it missed. Goofiness of torts, rejected by juries. It is goofy to believe that rare accidents can be foreseen. That is the central doctrine of negligence. I demand that the authors give me the four numbers for tonight's lottery. They are far more likely to correctly do so than to foresee a car accident at the most dangerous intersection in the nation.

3) Why do scams die? They did not produce enough money for the effort of the scammer. Or, people learned from experience, and stop responding to the scam.
Scholasticism methodology of church and law is not just a false theory, a scam, but is also a robust business model. So, many heretics burned at the stake were wealthy. The church seized their property. The church has moved on from Scholasticism, the best of thinking and technology of 1250 A.D. It did so hundreds of years ago. It apologized for the Inquisition, the business end of Scholasticism. The goofy, ridiculous, American lawyer continues to milk its Rent Seeking strengths.

The sole remedy is to end all judicial and governmental immunities. That fairness would accelerate the cycle of tort death by raising the risk cost of false torts. It would bring the great benefits of torts to those that inflict them on others. See how they like it.

Reverse Hans by statute. Repeal the corrupt, self-dealing Eleventh Amendment. Pass Constitutional amendment ending all self-dealt, lawless judicial immunities. Pass another ending res judicata, which is just another self-dealt, corrupt judicial immunity.
The oppressors on the bench are not just incompetent, but also intentionally predatory. They make stealthy industrial policy without competence nor authority. They transfer massive amount of funds from the productive to the parasitic, mostly to lawyers.

The sole justification for such immunities is that the sovereign speaks with the voice of God, a violation of the Establishment Clause.

So, it is learned that the justices knew that smokers cost less to government by their earlier deaths, not more, as claimed in the tobacco settlement. All tobacco money gets returned, with triple exemplary damages for scienter. Take a state down. Bankrupt the voters that elected these incompetent, self-dealing predators to the bench. To deter.

The tort claim is a product, dangerous in its intended use ( ). This article shows, many get defective and obsolete.

Posted by: Supremacy Claus | May 14, 2008 2:09:20 AM

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