GOVT280 Notes
Module 1
Edwards: Chapter 1
A is a Civil wrong for which the victim receives compensation in the form of damagestort
oIntentional torts (assault, battery, and false imprisonment are some examples)
oNegligence (acts committed without intent but in violation of a reasonable person
standard)
oStrict liability (acts committed with no intent at all)
The main idea is that socially unreasonable conduct should be penalized and those who are its
victims should be compensated
oBut we need to balance the plaintiff’s need for protection against the defendant’s claim
of freedom to pursue his own ends
oHow can we determine what is reasonable?
Public policy: Policy of the public or a community that dictates the norms of the community
based on its beliefs and values regarding justice, fairness, and equality
oJudges may consider public policy to determine the impact their rulings or legal
principles will have on society as a whole
Because of precedence
Is the morality of a defendant’s conduct relevant in tort law?
oSometimes, but sometimes not.
oTort law does not deal with all blatantly immoral acts.
Not all human wrongs can be remedied.
oSlippery slope and administrative concerns
oIf courts deal with one issue, they can get many more similar ones.
oSometimes, making decisions that help short-term justice is harmful to long-term justice
Tort law is largely a product of case law, which involves case-by-case decision-making by the
state courts
oStatutes play a large role in how courts rule, unless statutory gaps exist that leave a court
with unanswered questions
oSome courts also use the Restatement of the Law of Torts
Black-letter principles/law: Legal principles generally accepted by the legal community
Differences between torts and crimes
oCrime is committed against society, while a tort is an offense against individuals.
oThe purpose of criminal trials is to punish the offender, while the purpose of tort cases is
to compensate (give restitution to) the victim.
oCivil procedure is used in tort cases, whereas criminal procedure is used in criminal
cases.
oThe burden of proof in torts is lower than in criminal cases (preponderance of evidence
vs. beyond a reasonable doubt).
Some actions can be both crimes and torts.
oIt’s better to plead no contest than guilty so your admission cannot be used against you
in civil court.
Clear and convincing evidence is a higher standard of persuasion than “preponderance of the
evidence” but less than “proof beyond a reasonable doubt.” In most states the standard requires
the judge or jury to find the evidence submitted is substantially more likely to be true than not
true
Torts versus Contracts
oDifference is about the voluntariness
oFor a contract, the parties explicitly agree to give up something in return for receiving
some other benefit
oFor torts, duties are imposed on people without their express consent or awareness
oThe remedy in a contract case is to compensate the prevailing party with the benefit of
the bargain (provide them with what was expected under the contract). In a tort case,
the remedy is much broader and the victim of a tort may be awarded monetary
damages for pain and suffering, economic damages, and punitive damages.
oBut there is some overlap, such as the obligation to act in good faith
oIn contract law, obligations are made to specific individuals by virtue of an agreement of
the parties; whereas in tort law, duties are imposed by law and owed to society. In tort
law, one is bound to act as a reasonable person toward all other persons, but in contract
law one is bound in contract only to certain chosen individuals (barring special
relationships such as employee/employer and child/parent)
Evolution of Tort Law
oStarted as blood feuds, where harm suffered by one clan member had to be avenged by
the entire clan
oLater, victims would plead their case before the community, who offered advice. Once a
fair solution was found, the parties resolved their issue and avoided the blood feud.
oMonetary compensation in place of blood, but it went towards the clan instead of the
individual victim
o
