An Essay on Torts: States of Argument

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the “states of argument” that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the traditional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice.

The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism and individualism, and the inherent limits of private law. It offers both comparisons and contrasts from the most wrenchingly generated non-tort compensation system, the September 11th Fund. Finally raising the question of the extent to which courts judging difficult tort cases can truly be dispassionate, it suggests that the state of tort law remains one of argument, constantly requiring judgment.