Viva Torts!

Article excerpt

I. INTRODUCTION

II. THE MISSION OF TORT LAW

III. BRIEF HISTORY OF AMERICAN TORT LAW

IV. THE ASSAULT ON TORT LAW

V. FUTURE DIRECTIONS

VI. CONCLUSION

I . INTRODUCTION

I am delighted to be here celebrating the legacy of Tom Lambert, one of my great American heroes. Tom was the Poet Laureate of Tort Law. He believed in tort law as the "Jurisprudence of Hope." (2) His romantic articles and exuberant speeches did more for the advancement of tort law than those of any other participant in the discourse over the value of tort law to Americans. He was an enthusiastic, passionate, steadfast believer in the tort system. He could make an audience weep as he described the sorry plight of a tort victim. He could make them laugh. Most importantly, he could make them think with his quotes from great philosophers and literature. He loved torts and tort lawyers and we, in turn, loved him.

Tom enjoyed nothing better than to talk about his beloved law of torts. In that way at least, I am just like Tom, for I too love to share ideas with other torts aficionados. I must confess that I am a "tortaholic," as I expect many of you are. Why is it that I get no kick from champagne, that mere alcohol does not thrill me at all, but I still get a kick out of torts? Why have so many of us been afflicted by torts mania? What is it about torts that so engages us, so tantalizes us, so captivates us?

I believe, in part, that it is the "human face" of tort law that so attracts us, (3) its capacity for tragedy, for comedy, for pathos, for suffering, for heroism and even for villainy. It can sadden us, shock us, infuriate us, thrill us, inspire us, amuse us, surprise us, and entertain us. The cast of fascinating characters, the exotic and mundane places, and the sometime bizarre events involve us in a kaleidoscope of real life. Many torts cases are like novels or movies, each telling a unique and gripping story. (4) We torts people are blessed with a front row center seat on the drama of life. That is one reason why we so love torts, why it keeps us so enthralled, why it gives us such satisfaction.

There is also the excitement of the intellectual exercise furnished to us by the tantalizing problems exposed in torts cases. As a Cal-Tech Nobel prize-winning scientist, Richard Feynman, once wrote about his love of science, "[a]nother value of science is the fun called intellectual enjoyment which some people get from reading and learning and thinking about it, and which others get from working in it." (5) Tort lawyers share that type of excitement with scientists. Whenever there occurs a major tragedy--9/11, Bhopal, Chernobyl, AIDS, tainted blood, Princess Diana's death, asbestos, tobacco, mold--tort lawyers, in addition, of course, to the usual human reactions of shock and sadness, cannot avoid analyzing the potential tort liability that may arise. For us, there is challenge and pleasure to be involved in the theorizing and, if we are lucky, in litigating about those issues. In addition, there is a special delight for those of us who are privileged to teach torts to the next generations of tort lawyers, to engage in this analysis in class with law students who participate enthusiastically, optimistically, perhaps naively, in the exercise. In short, tort law and tort lore are a unique reflection of our culture and our English-speaking heritage, providing a welcome arena in which the "culture wars" can be fought peacefully and rationally. (6)

There is another attractive feature of tort law practice. It gives those who are so inclined, and most tort lawyers are so inclined, the opportunity to help people in trouble. The injured and the bereaved desperately require tort lawyers to help them retake whatever is left of their lives that can be retaken with money. This work is most satisfying to humane, sensitive lawyers. A New Yorker magazine cartoon depicts someone lying unconscious on the floor in an office, having been knocked over by a filing cabinet, which had fallen on him. …