Academic journal article Vanderbilt Law Review

A Pragmatic Approach to Improving Tort Law

Academic journal article Vanderbilt Law Review

A Pragmatic Approach to Improving Tort Law

Article excerpt


In 1923, a group of lawyers, judges, and teachers met to consider the desirability of forming the American Law Institute ("ALI") and of undertaking its ongoing project of restating the law. They began their deliberations with the recognition that the legal system had serious failings1 and that the public was generally dissatisfied and skeptical about the justice it dispensed.2 The central difficulty with the system of justice, they thought, was the fact that legal outcomes were so uncertain. Uncertainty, they argued, made the legal system cumbersome, expensive and inaccessible; it denied justice to litigants3 and discouraged legitimate activities.4 The reasons for this uncertainty were many. Among them, the prospectus noted: the lack of agreement among the members of the legal profession on the fundamental principles of the common law, lack of precision in the use of legal terms, conflicting and badly drawn statutory provisions .... the great volume of recorded decisions, the ignorance of judges and lawyers and the number and nature of novel legal cases.5

These were understood to be serious problems, but, as serious as they were, the solution seemed right at hand. After all, these were precisely the kinds of problems that a group of well intentioned and capable lawyers might effectively address. What was needed, they thought, was an opportunity for the "best" lawyers to work together in an atmosphere that was free from the need to represent the interests of particular clients. Freed of partisan interests, the participants would be able to use objective measures of rational discourse to find agreement, develop precision, and clarify legal doctrines. The result would be a series of restatements that would rally the legal community around correct statements of legal principles

In 1923, these hopes became a reality with the founding of the American Law Institute and its sponsorship of the ongoing effort to "restate" American law. Since its founding, the ALI has consistently addressed the subject area of tort law.7 While these efforts have accomplished much that is worthwhile,8 they have fallen short of their stated goal. In fact, the problems of the tort system today bear a remarkable resemblance to those that were articulated in 1923. Thus, for all the careful restating, the tort system remains steeped in controversy and vulnerable to the twin charges of uncertainty and injustice.

The continuing problem of uncertainty is hardly surprising. By its very nature, tort law involves accidental and unexpected injuries, and these injuries often provoke an emotional and conflicted response. On the one hand, we view tort plaintiffs with considerable sympathy. On the other, their predicaments also inspire a certain amount of fear. Tales about unexpected injuries remind us of our own vulnerability to sudden catastrophe. Blaming the victim can work to appease this fear by seeming to reassure us that continued vigilance can prevent sudden harm. The conflict between these two feelings-sympathy for the plaintiff and fear of our own vulnerability-can produce ambivalence, and, I suspect, this is one of the reasons why the system seems to reach so many irreconcilable outcomes. For example, the system is sometimes remarkably generous to plaintiffs:

A man drowns in a motel swimming pool. His family is able to recover from the motel owner whose only fault was a failure to post a sign stating the obvious fact that there was no lifeguard in attendance?

At other times, it seems downright parsimonious:

A woman is raped in a motel room that has no phone and no security of any kind. The jury found the woman to be 97% negligent because she opened the door in the middle of the night. At the same time, they found the motel owner, who did not even warn her that the neighborhood was dangerous, only 3% negligent. 10

Of course, it is true that these cases rest upon different doctrinal grounds and that they are not, strictly speaking, inconsistent. …

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