An Introduction to American Tort Law

• Author: John Fabian Witt
• Pages: 15-43

1. Introduction

15

CHAPTER 1. AN INTRODUCTION TO AMERICAN TORT LAW

A. Principles and Institutions

Tort law is the common law of civil wrongs not arising out of contract. Torts

books often start with a definition because tort law, unlike other mainstays of the first

year in the American law school curriculum, can seem strange and unfamiliar to the new

law student. Terms like “contracts,” or “procedure,” “property,” and “criminal law” are

relatively familiar to the student long before he or she arrives for the first day of classes.

“Constitutional law” will resonate with the law student who has even a passing interest in

politics or public policy. Alone among first year subjects, “torts” has not made much

headway into lay usage. Indeed, the situation is even worse than this suggests, for to the

extent the term has made its way into popular usage, the results have often been terrible

misuse and misunderstanding.

So let’s start with a definition and take it piece by piece: Tort law is the common

law of civil wrongs not arising out of contract. We call tort law a “common law” field

because it arises out of the body of legal norms and institutions inherited by the United

States from England more than two centuries ago, when the United States won

independence from the British Empire. In England, the common law was the law of the

King’s courts in the centuries after the Norman Conquest in 1066. (The common law

was the law common to those courts, as opposed to the church courts, borough courts, and

the courts of the local nobility, each of which had its own law through the medieval and

early modern periods.) Today, to say that a body of law is made up of common law

principles is to say that it is mostly judge-made law, though not necessarily exclusively

so. State legislatures and the U.S. Congress increasingly alter the common law of torts.

The Federal Constitution and its state-level counterparts largely (but not entirely) give the

Congress and state legislatures power to make such alterations, though as we shall see

constitutional constraints on legislative alteration impinge on tort law in several different

ways. Nonetheless, it is still fair to call torts a common law field. And as a common law

field, torts is made up predominantly of state law, rather than federal law, though as we

shall see federal law has always played a role, especially in the past century, and even

more so in the last two decades. To the extent that torts remains a subject of state law, its

basic norms will vary from state to state, though usually with a wide area of consensus at

its core.

Tort law deals with civil wrongs as opposed to violations of the criminal law.

This means that tort law’s norms and institutions exhibit a cluster of features

characteristic of civil proceedings, not criminal proceedings. Private parties, not public

prosecutors, typically initiate tort litigation (though the government may be a claimant in

tort cases when certain harms befall government property). The array of procedural

protections for criminal defendants (many of them constitutionally required) typically

does not apply to defendants in torts cases. There is no privilege not to testify on the

grounds that you might concede liability, for example. There are no Miranda warnings in

torts. And there is no constitutionally protected right to confront witnesses. The Federal

Constitution does not require states to offer jury trials in tort cases, though most states do

1. Introduction

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anyway. The standard of proof is a preponderance of the evidence rather than beyond a

reasonable doubt. Parties without lawyers are not usually offered free court-appointed

counsel. Most importantly, perhaps, the fact that tort law is the law of civil wrongs

means that, with one exception, tort law does not aim to punish. Punishment is a

principal function of the criminal justice system. The remedies in a torts case aim not to

punish the defendant, but to compensate the plaintiff, almost always through monetary

compensation to make up for losses, and sometimes (though much less often) through an

order by a court requiring that a defendant cease some ongoing course of conduct. The

exception to this rule is the doctrine of punitive damages, which consist of monetary

sums awarded by a judge or jury for the purpose of punishing tort defendants, and which

are awardable in torts cases involving some especially outrageous or reckless conduct.

As we shall see, even though punitive damages are rare, they have attracted considerable

attention because of concerns that they punish without the institutional protections

offered to criminal defendants. The United States Supreme Court has significantly

constrained the size of possible punitive damages awards in recent years.

Tort law is a field not merely of civil law: it is a field of civil law wrongs. The

term “tort” comes from the Latin meaning bend or twist. (It shares the same root as the

word “torture.”) For centuries, tort law has thus indelibly been connected to the moral

concept of wrongfulness. But the emphasis on wrongfulness produces two kinds of

puzzles. The first is how to measure it. Some cases are easy, of course: in such cases, we

know wrongfulness when we see it. Others are hard. And in the hard cases the

distinction between right and wrong can be a hair’s breadth. Perhaps for this reason,

some domains in tort law purport to do away with the concept of wrongfulness. As we

shall see, there is some reason to think that the early modern English common law may

have required defendants to pay for the injuries they caused regardless of whether they

had acted wrongly. And since at least the middle of the nineteenth century, important

areas of the law (urged on by prominent jurists and commentators) have embraced so-

called strict or no-fault liability doctrines that allocate accident costs without regard to

questions of wrongfulness. In the field of product-related injuries, for example, which we

will spend considerable time discussing later in this book, the trend toward eliminating

fault or wrongdoing from the analysis of torts cases has been especially powerful in the

past half century.

Last, tort law is a common law field of civil wrongs not arising out of contract.

This means that, as a conceptual matter, the obligations that tort law recognizes exist

independent of any agreement between the parties. For a person to have a legal

obligation to another arising out of tort law, they need not have promised the other person

anything. The law of torts itself, not the terms of any agreement, specify the contours of

the obligations it enforces.

Yet this final piece of our definition, like each element of the definition that has

preceded it, comes with caveats and exceptions, two of which are worth noting here.

First, many and perhaps even most torts cases do arise out of the interactions of parties

who are in contractual relationships with one another, or at least in relationships akin to

contracts. Consumers of products contract with sellers to buy those products, but if they