The English language is full of fun, descriptive, and beautiful words. Moxie. Arsenical. Mendelian. But you will be hard pressed to find a more ungainly word than "torts." Often confused with a quasi-cake, the few people who know what you mean when you say "torts" generally think of it as not just ugly in sound but also in meaning. We hear politicians demanding tort reform, telling us that greedy trial lawyers are unraveling the fabric of American society. It's a myopic view. Throughout the coming year, this blog will show that instead of unraveling America's fabric, tort law is in fact an essential part of the patchwork quilt that makes us who we are.
If a country had only one citizen, there would be no need for tort law. But as soon as any population reaches two, tort law arises. Because at its core, tort law defines the duties we owe each other--whether we are parents, government officials, business owners, or mere bystanders--and what we should do when those duties are not met. Tort law attempts to make the injured whole and set societal norms. Unlike criminal law, it rarely involves the threat of state action: it is merely an organized system of allowing one person to peaceably bring a grievance against another. Although there are tort systems throughout the world, this private system of personal responsibility and enforcement is quintessentially American.
Take a moment and look around you. The impact of tort law is everywhere. If you get in your car and put on your seat belt, drive soberly to the supermarket, use a shopping cart, and buy bag of marshmallows you are both defining and following American tort jurisprudence. Every carbon monoxide detector, bucket of paint, water pipe and baseball ticket has a story to tell with respect to tort law and our society.
In law school, budding attorneys are generally taught torts through reading reported case opinions. That is, opinions written by judges and their clerks at the conclusion of court cases. In theory, these opinions deliver the facts of the case, the law to be applied, and a decision in light of both. But in most cases, the mechanism of a reported decision is insufficient to really understand what happened and why. In this blog we will try to unpack some of the stories behind these cases, expanding our view to include parallel incidents and concepts that help us understand our relationships with one another. And in the process we will see that instead of being an ugly, misunderstood word, "torts" represents the study of history, society, and America itself.