Tort theory
seminar 2005-2006
Professor
Krauss
I. General Comments
The "common denominator" of the selected readings and topics for discussion, and one of the two main goals of the seminar, is the exploration of aspects of the Tort 'iceberg' that we could only chip away at in the basic Torts course. A good knowledge of and interest in the subjects studied in Torts is the only prerequisite for this seminar.
The other main goal of the seminar is to see you produce excellent
written work. Published work originating in this seminar has resulted in
clerkships and has enhanced and changed professional goals.
II. Course materials
The assigned readings for each class session will be posted at the
TWEN site for the course before the beginning of the term. Some of the assigned
articles are "classic"; others are recent. Some you will love, others
will infuriate you (and me!) -- the fact that an article is required reading
doesnÕt mean it is approved of by yours truly!.
Readings will come from many sources. To save you money, many law
review articles will not be photocopied, as these may be downloaded free of
charge via TWEN. Where no downloaded version is
available, you must purchase copies at the copy center.
Interesting periodicals to peruse in the law library (they are NOT
on Westlaw or LEXIS, but they are chock full of tort theory articles) include Philosophy
and Public Policy, Philosophy and Public Affairs, Economics and Philosophy, and Ethics.
Several interesting books about torts (to spur thought, instil
anger, or elicit praise) are worthy of consideration as background for the
seminar, and to help you choose an essay topic. Titles include:
Atiyah, The Damages Lottery, 1997
Bell & OÕConnell, Accidental Justice, 1997
Cane, The Anatomy of Tort Law, 1997
Coleman, Risks and Wrongs, 1992
Cross, America the Adversarial, 2003
Harris (ed.), Bioethics, Oxford Readings in Philosophy, 2001
Hart & HonorŽ, Causation in the Law, 2nd ed., 1985
Landes and Posner, The Economic Structure of Tort Law, 1988
Levmore, Perspectives on Tort Theory, 1993
Owen (ed.), Philosophical Foundations of Tort Law, 1995
Rabin (ed.), Perspectives on Tort Law, 3rd ed., 1990
Sosa & Tooley (eds.), Causation, Oxford Readings in Philosophy, 1993
Scheffler (ed.), Consequentialism and Its Critics, Oxford Readings in Philosophy, 1988
Steinbock, Killing and Letting Die, 2nd ed., 1995
Sugarman, Doing Away With Personal Injury Law, 1989
Sunstein, Punitive Damages: How Juries Decide, 2003
Watson et al. (eds.) Free Will, Oxford Readings in Philosophy, 2003
Weinrib, The Idea of Private Law, 1995
White, Tort Law in America: An Intellectual History, 2003 (expanded edition)
III. The Term Paper
In addition to the 1/3 class participation component (see infra), the seminar grade is 2/3 based on a
written paper. The paper must be on a topic relevant to the seminar. Types of
papers include: an argument for or against a particular position regarding an
important issue of tort law; a detailed and critical review of a recent book or
article having implications for tort theory; a critical or historical analysis
of a theoretically interesting case; etc.
All drafts of your paper (see infra) should be double-spaced with normal
margins. Footnotes should be single-spaced and contained on each page of text
(i.e. no endnotes). Use a consistent citation method; parallel cites are
not required.
Total length of the final paper must be 20-50 pages, unless written
authorization to submit a longer paper is granted. First drafts can be shorter or longer, though.
An annotated bibliography must accompany your paper (but
its length is not included in the page total above). The bibliography will list
and summarize (one short paragraph per entry) relevant sources read in
preparing your paper, whether or not you cited to them in the paper. First drafts need not contain a
bibliography.
The following calendar is mandatory. Failure to comply with each
deadline will result in terrible things happening!
1. On or
before September 20,
2005, you must submit two copies of a typed proposal for your paper. The proposal should be
2-3 pages long, should demonstrate that you have read a bit about your topic,
and should show me that you're genuinely interested in it. The key is to
convince me that this is not a last-minute choice, but something you have
thought about and researched, and are seriously interested in. You are very strongly encouraged (but
not obliged) to meet with me beforehand to discuss possible topics.
I will return the proposal to your mailbox, briefly annotated and
marked "approved" or "disapproved" by Tuesday, Sept. 30. If
the topic is disapproved, you must meet with me before Friday, Oct. 3 to select
a topic. If you don't have a suitable topic to propose at this meeting I will
assign one. I've almost never had to do this.
It is my experience that a "sham" paper proposal (put
together at the last minute by a procrastinating student) is almost a guarantee
of a disappointing final paper. Please
hit the ground running!
2. If
you wish to request an extension for submission of your draft and final paper, you must do so on
or before September 27,
2005 [no exceptions
allowed on this]. An extension request must demonstrate more developed reading,
a more well-defined project and a plan for the extended time period (see
immediately infra). A response to
your request will be provided within three days.
If, say, 100
quality hours are spent on research and writing during the Spring semester,
what might have been a very good
fall term paper can be transformed into a prize-winning, publishable article
that can reap professional and personal rewards. This is not a pipe
dream: it has happened for several students. It has changed career plans and
enriched lives.
On the other
hand, an extension should not be requested unless you expect to improve the
paper over the extension period. My grading standards are higher for papers
submitted after an extension than for papers delivered in December. What's
more, students who are not really interested in their topic, but ask for an
extension as part of a procrastination strategy, tend to lose focus on a
subject matter if they postpone work on it too long – this makes the
final paper much worse.
Extensions are not no-risk propositions, unless you are prepared to work during the
Spring semester.
3. October 30, 2005 is the deadline for submission of the first draft of your paper. The delay is extended to March
1, 2006 for those to
whom an extension has been granted.
The draft should be 15-60 pages long. It can be "rough",
i.e., structure and form need not be polished, and research in every area of the
paper need not be complete. The first draft must, however, demonstrate
substantial research and thought.
One week after the first draft is submitted, I will return the
draft with written comments and a projected grade, and schedule individual
conferences to discuss each draft.
A projected grade on the first draft is your "trajectory" –
it does not imply that this grade is Ôlocked inÕ. A good grade on a
first draft means it's headed in the right direction, NOT that it can remain
untouched. An unimproved first draft would receive a considerably lower grade
if submitted as a final paper.
4. On or
before December 6,
2005 you must submit the final draft of your paper. The delay is prolonged for
a time to be negotiated but not to exceed June 1, 2006, for those to whom an extension has
been granted.....
*****
IV. Class participation:
A seminar is a group effort. We all learn from each other -- I
certainly learn from a lot my co-seminarians. If you donÕt want to
prepare for each session and assume prime responsibility for one session, this
seminar is not for you.
I will direct the first three weeks of class. I anticipate that fellow
seminarians (i.e., you) will direct remaining sessions, as indicated
below. You will be placed "in
charge" of a session, alone or with a colleague. This means you will
direct class discussion on this topic, and should be very well prepared
(typically, by doing research in addition to the required reading) that
particular week. Your assigned class session will be communicated to you by
September 2, 2005. Your assigned session might or might not be related to your
paper topic.
You are expected to attend and participate in every class session,
and to have read all compulsory readings. [Please notify me in advance if
attendance on a particular date is impossible, or if you are not fully prepared
for class].
To arrive at your final grade, the final paper grade will count
for 67% of the grade. Your leadership of one class session and participation
throughout the semester will constitute 33%.
(NB We will NOT get to all of these subjects this year. But this
list may prove useful in your selection of a research topic. In the later part
of the term the interests you have developed during the seminar may affect the
assigned readings. You should indicate any suggestions about readings and/or
topics to me before August 1 (see calendar infra).)
1 Is there a Torts "crisis" in 21st Century America?
2 Overview of competing theories of tort liability
-efficiency: its
meaning and content
-corrective vs.
distributive justice
-rights-based
theories of tort law
-self-preference
vs no-self-preference theories of tort law
-the role of
moral blame in liability
-the impact of
criticisms of free will on theories of tort liability
-rights based
views of moral autonomy (pursuit of life-plans)
3. Standards of care: what does the 'reasonable person' actually
do?
-objective and
subjective standards of care
-implementation
of the negligence standard
- the appropriate
role of"joint and several" liability
4. Causation
-the moral
importance of causation
-is actual
causation factual and determinate? How is it defined in the law, in theory and
in practice? How do various tests (but-for, substantial factor, etc.) work?
-what is the appropriate
role of statistical analysis in determining tort causation? Is proportional
causation appropriate?
5. Damages:
-hedonic damages
-punitive damages
-damages for
"loss of chance"and for increased risk
-'pain and
suffering' damages
-is there any justification
for the award of non-compensatory economic, non-economic, or punitive damages?
-what is 'pure
economic loss'? Should damages for this be recoverable only in contract, or
also in tort?
-should the
income of the parties determine damages payable?
6. Assumption of risk
7. Affirmative duties towards others
-duty to rescue
-duty to protect
-duties of
government
-duties towards
children and fetuses
-tortious
interference with contract, tortious contracting (sale of heroin)
-is the
active/passive dichotomy tenable?
9. Tort immunity
-should
anyone ever be immune from tort liability?
-should corporations (as opposed to
individuals) ever be liable in tort?
Many students ask me what tort theory is. What makes an article a tort theory article, approvable by me, as opposed to
just a tort article, which I am averse to approving? In essence, a tort theory article is an article that goes to
the root of an issue. What should
tort liability in general, or a type of tort liability in particular, look
like, and why should it look that way?
Tort theory articles are to be found in many law journals. Examples
of tort theory articles can easily be found in colloquia issues, one or more of
which you might want to glance at if youÕre interested in this seminar. Such colloquia include:
I hope this provisional syllabus gives you enough information to
select Tort Theory this Fall. I look forward to an enriching seminar, and hope
you will join us!