[MUSIC] Hello, my name is Anita Allen. I'm the Henry R. Silverman Professor of Law and Professor of Philosophy at the University of Pennsylvania Law School where I've taught for 17 years. I'm here today in the moot courtroom of the law school to tell you about American tort law, what makes it special, what makes it distinct. What is American tort law? To begin, I'd like to tell you a story from the 19th century when an American tort law, distinct from English tort law, first emerged. So, two dogs broke out in a vicious fight. One dog was owned by Mr. Brown, the other by Mr. Kendall. Concerned about the safety of the animals, Kendall took a long stick, about four feet long, and began beating the dogs, hoping they would separate. Brown stood behind Kendall, observing his efforts. Unfortunately, an accident occurred. At one point, Kendall took a few steps backward in the direction of Brown while continuing to swing the stick. He didn't see just how close he was to Brown. He inadvertently struck Brown in the eye, causing severe injury. Like the unfortunate Mr. Brown, people are injured every day. They're injured in car collisions, while operating machinery, at work, by medical procedures. They're injured by pranks, by invasions of privacy, in natural disasters, when ferries capsize, in train, in air crashes, at sport, in fights, in war, and in acts of terrorism. The property that people value is damaged too. Their animals can be poisoned, their cars dented, their jewelry stolen, their bicycle swiped, their homes burned down, their smart phones borrowed and left out in the rain. Tort law is a response to the problem of injuries like these. Tort law allows someone injured, like Mr. Brown, to seek monetary damages from someone who causes an injury, like Mr. Kendall. Did Brown actually win money from Mr. Kendall? More about that in just a few moments. But let me tell you something more about tort law. American tort law is part of our common law. It is typically distinguished from other areas of common law, most notably from contract law, which arises out of mutual agreements, from property law, which regulates ownership, and criminal law, which penalizes wrongs on behalf of the public. We use the term tort action to refer to a civil lawsuit based on a claim that someone has violated judge made rules or closely related civil statutes that serve as precedent and authority for adjudicating private disputes. As noted, tort actions usually seek money to compensate for the harm done. Where injury is ongoing, though, someone fed up with it might seek a court order to just enjoin the action, enjoin the noises, the smells, the pollution, or other nuisances or harms that are affecting them. American tort law is embedded in an adversary system of procedural justice. Each party hires their own lawyers and expert witnesses to persuade judge and jury. The adversary system relies upon the use of non-expert juries to adjudicate facts, and upon professional lawyers to bring and defend claims before professional judges and to negotiate settlements. Substantive tort law is private law made by judges and modified from time to time by state statutes. Tort law empowers victims of injury to receive justice from those whom judges and juries consider responsible for their injuries. But what kind of justice? The justice of money? It's often said that the main purpose of tort law is to compensate victims of injury to achieve what some Western philosophers call corrective justice. Corrective justice is a justice that seeks to redress wrongs by placing the injured person back in the situation he or she was before they were injured, the status quo ante, as we say in Latin. You can't give a man who's lost an eye a new eye, but you can give him enough money to buy a fake eye, a prosthetic eye, visit his doctor, replace lost wages, and afford a lifestyle similar to the one he enjoyed prior to the injury when he had two eyes. Tort law is not just about corrective justice. Judges have recognized other aims of tort liability. These variously include deterring careless and aggressive behavior, punishing recklessness and malice, encouraging insurance, and forcing businesses to internalize their costs. As law students quickly discover, American tort law consists of a very, very large number of judge made rules and principles. The rules differ slightly from state to state, so American tort law is really 50 different sets of tort law. But there is much commonality in state common law. The law doesn't change much from New York, for example, to California. Some of the rules and principles that comprise tort law are centuries old, inherited from English common law. Some are only decades old. Some even newer. Tort law changes. Judges can change the rules. One of the distinctive features of the rules and principles of U.S. tort law is a decided preference for imposing liability only where someone is at fault. We blame. But there are numerous pragmatic exceptions. With respect to some classes of injury, courts think liability is so important for policy reasons, for the sake of social goals like reducing the frequency and severity of accidents, for example, that they assign responsibility without fault. American law recognizes three main categories of tort liability corresponding to three broad sources of injury. One, injuries stemming from intentional acts. Two, injuries stemming from negligent acts. And three, injuries stemming from dangerous activities or defective consumer products. I have taught tort law in the United States for more than 25 years. What keeps me interested is the stories of how people get hurt, and whether the rules and principles of tort law can be brought to bear to make things better. Like most professors, I teach tort law mainly by asking students to read and discuss the stories that comprise case law. Case law is the body of reasoned opinion judges write to explain their decisions in the individual cases brought before them. Judges do their best, but they don't always get the rules right and don't always make sense. Their published opinions become the authorities, though, upon which we rely to guide our behavior and resolve our disputes. We try to be critical but also respectful. Our judges are storytellers, and learning common law torts is learning the stories and the significance of the stories that judges tell about our personal and public calamities. [MUSIC]
