Torts: A Synthesis

Professor Torts has a very theoretical, highly unorthodox curriculum. We don't learn much doctrine, "because it's easy, and not that important." It's taken a while, but the themes of the course have started to coalesce. I think it goes something like this:

Much American law is founded on certain assumptions about humans and how they make decisions. Specifically, people have sets of preferences that are relatively stable, and their decisions are made in a way that reflects those preferences. The critical Torts scholar should be concerned about this for three reasons.

First, because the influence of this model is widely unacknowledged. It is rarely made explicit, and is so deeply embedded in the culture that its influence can be hard to recognize. To the extend that discussions about the law don't address it, they cannot explain important features of legal rules. The model influences what sets of legal rules are adopted in ways that aren't accounted for by other theories.

Second, because this received model of human psychology is deeply flawed. People's decisions are affected to a remarkable degree by situational forces - the environment they are in when their choices are made. Either people's preferences (which even in the received model they may not entirely be aware of) contain maxims like "defer to authority" that don't square with traditional understandings of what people want, or their preferences are not very stable across environments. There is apparently a wealth of research to back up these empirical concerns.

Third, because the rubric of choice legitimizes unjust outcomes. People don't mind when bad things happen to others because of their own choices. Our moral sensibilities are only aroused when someone suffers misfortunes they don't deserve. The received model causes us to over-attribute the causes of harm to the actions and choices of the victims, leading us to under-compensate them. This is unjust.

Now for some reason he's been dancing around laying this all out in one go, and it frequently gets cloaked in inflammatory language like, "[the received model] is a collective lie we tell ourselves," but set out like that it doesn't seem all too incredible.