8/14/2019 2008F Witt TORTS Index
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WITTS 4 REASONSFORTORT LAW
1. Deterrence: law is trying to shape and incentivise
behavior.a. Goal is OPTIMAL deterrence (not total).
b. Information Asymmetry: shifts burden of compensation to the
party best positioned (information, resources etc) to
avoid injury, encouraging precautionc. Social Utility vs.
Costs
d. Problem: Moral Hazard of imposing liability on one party is
disincentivizing appropriate precaution-taking by the
other party
e. Problem: public service provided is an additional benefit not
weighed in revenue. Do not wan to overdeter publicgoods.
2. CorrectiveJustice: restoring a moral balancea. Insurance and
large corporations that pass on the cost to consumers &
shareholders bears the burden
b. Problem when there is no fault or it was only negligence
3. Compensation: restoring a (financial) deficita. Incomplete
justification by itself (not every harm is compensated): serves
other goals of corrective justice and
deterrence
b. LossDistribution: broad distribution of losses is an
advantage of imposing liability on business and institutions
i. Not a justification in itself: we dont always default to the
best loss spreaderii. Insurance solves loss distribution better
than law
iii. Regressive tax problem when incorporated into the price of
products
c. DeepPockets: Impose liability on parties in the best position
to pay for losses. However, Bill Gates does not payfor every
tort.
4. Everything else:a. Legitimacy of the State in the eyes of the
people
b. Punishment
c. Avoiding self help
d. Privatization/Insurance
e. Information forcing: pressure on the party with the
information.
5. AdministrativeCost: Minimize costs of procedure and maximize
efficiency.
ANALYTIC FRAMEWORKS
Rules v. Standards: Rules are bright lines, good for Admin Cost
& predictablity. Standards are loose principles that guide
decisionsin order to consider context and get cases right
However, rules sometimes work
Juries are imperfect, rules good for em
Rules an Standards trade off
Formalism v. Functionalism
Apply rule mechanically vs. use rules to achieve results
Welfarism, Utilitarianism vs. Rights
Torts v. Contracts: Assign liability through default rules that
parties may Contract around
Coase Theorm: Doesnt matter where the liability is imposed
parties allocate losses to the one able to bear the
cost most effectively and split the difference
Stranger cases v.relational cases: Torts essential to
compensating for the inability of strangers to coordinate and
distribute losses efficientlyInjunctions v. Damages
TORT: (Harm) A civil wrong, not arising out of contract?
Witts Torts:
1. Duty owed to D
2. Act in breach to Duty
