Alternative Rules for Determining Tort Liability
Coke's Institutes of the Law, No. 2, Series Editors: Amanda J. Owens & Charles K. Rowley
Introduction
Over a century ago, Justice Holmes coined the aphorism - '[t]he life of the law has not been logic: it has been experience' This aphorism applies with particular perspicacity to the vagaries and confusion of modern tort law. This Commentary will discuss the four different theories by which courts determine responsibility for accidents. The theories of negligence, strict liability, contributory negligence and comparative negligence all can play a role in modern cases. Each type of tort law has its own set of principles. Almost every tort case can be argued on the basis of more than one of the theories, adding yet another layer to the perplexities of the U.S. precedent-based law.
Precedent is the means by which the common law system ensures doctrinal stability. Known as stare decisis, this system ensures that the holding, or ratio decidendi, of each case is binding upon subsequent factually and legally similar cases. The binding nature of these decisions is dependent upon certain formal conditions, such as that higher court decisions have authority over lower courts.
This system ensures that courts hand down impartial decisions, because similarly situated disputants are governed by previous ratio decidendi. These decisions are carefully replicated in subsequent cases. The rules that emerge reflect the special standards of the legal system and are responsive to legitimate legal discourse. Stare decisis supports the social function of the courts in dispute resolution.
Additionally, the stare decisis system enriches the supply of legal rules. More importantly, these rules can be relied upon, therefore helping to ensure the rule of law. Inevitably there is tension between stare decisis and the evolution of new legal rules. However, the product of this tension is a body of law with doctrinal stability.
The following discussion of tort law illustrates how the negligence rule was initially established by stare decisis. The case law discussion shows how the U.S. tort system has deviated away from the basic principles of precedent during the second half of the twentieth century. The current law of tort is a high-cost, subjective, non-replicable system that undermines the foundational common law principles upon which the U.S. legal system is based.
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