Academic journal article Vanderbilt Law Review

Intent and Recklessness in Tort: The Practical Craft of Restating Law

Academic journal article Vanderbilt Law Review

Intent and Recklessness in Tort: The Practical Craft of Restating Law

Article excerpt


This Essay is about how Restatements should be conceptualized and drafted. It is not about whether they should be undertaken in the first instance;1 nor is it about the proper role of tort in American society.2 We assume that tort makes sense and that Re-- statements are helpful. Having recently served as Reporters on the Restatement (Third) of Torts: Products Liability,3 we want to share our thoughts on the practical craft involved in drafting such a proj-- ect. We focus on the concepts of "intent" and "recklessness," defined in sections 1 and 2 of the new Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft");4 but we trust that our comments have broader application.


A. Some General Propositions Regarding Both Intent and


However one frames the concepts of intent and recklessness in a Restatement, they must be kept generic, stable, and endogenous. By "generic" we mean that the concepts should not be tied to any single tort, or family of torts. For example, one frequently encounters philosophical treatments of tort that automatically link intent with the causing of tangible harms, such as personal injury and property damage.5 Apparently, intent and harm are coupled in this manner in order to contrast intentional infliction of harm with negligently harmful conduct.6 But to inextricably link intent with tangible harm in a Restatement of Torts would constitute error-- intent has a wider range of applications in the tort system. Thus, an actor may intentionally cause another to suffer harm other than tangible harm--for example, economic loss,7 injury to reputation? or pure emotional upsets-under circumstances that make the actor's conduct tortious. Indeed, an actor may commit an intentional tort without intending any harm whatsoever.10 The definition of intent must, therefore, be kept generic so that it can help to define a wide range of different torts.11 The same rule applies to recklessness. One may recklessly cause not only tangible harm to persons or property, but also economic loss, injury to reputation, and pure emotional upset unaccompanied by personal injury or property damage. 12

Both intent and recklessness must also be kept stable in the sense that they must have the same meaning whenever employed in defining tortious acts. The Restatement drafter must be able, in other words, to offer a definition that remains constant whenever used in this Restatement.13 The concept of intent is too fundamental to be allowed to shift meanings across different factual contexts. Finally, intent and recklessness must be kept endogenous to tort without adjusting for how those elements are conceptualized in nonlegal contexts or in legal contexts other than tort. Thus, the fact that in Shakespeare's tragedies "intent" may carry a special meaning that helps the playwright achieve dramatic impact,14 or the fact that "intent" has a special meaning in criminal statutes,15 should be irrelevant to the drafter of a Restatement of Torts. A Restatement of Torts speaks to, and only to, the tort system of which it is a constituent part. Other systems--Shakespearian tragedies, systems of criminal justice, and the like--should be left to conceptualize intent and recklessness on their own, perhaps quite differently.

A few further generalizations are in order. Both intent and recklessness involve subjective states of mind. Depending on the particular context, they may be coupled with objective evaluative standards,16 but a particular state of mind is always implicated.17 Moreover, while recklessness necessarily implies wrongfulness from a tort perspective, intent does not. Of course, for the causative act to be tortious, the intended consequence will more often than not be antisocial. But it need not be--one may intend consequences of one's act that are, from the actor's reasonable perspective, benign,18 or even socially beneficial. …

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