Imagining the World We Teach and Write

If you were describing the raison d’etre for why your course matters, what would that look like? This semester, I find myself teaching two core first year courses -- Property and Torts.  Though my colleagues joke that I teach ‘Prorts,’ I suspect they are not far off.  I might even suggest that what I teach is the law of property and the law concerning forced transfers of property through civil systems.  Perhaps though, that is just a reflection of how I see the world -- as dominated by one theoretical construct versus another.  

This became clear to me last week as I attempted to think with students about policies animating the law of accident, nuisance, and strict liability as they fit within a broader legal scheme.  I started with a circle: the ‘it.’  Next, I added ways we transfer the ‘it’ -- a parallel line of consent.  Sometimes, as in the world of contracts, we transfer the ‘it’ through express consent; and sometimes, as in criminal law, we force the transfer of the ‘it’ through implied consent (we might call this representative democracy, deliberative democracy, or some other politically animating principle).  

There is also another axis -- the public/ private axis.   We might say that the public private axis represents the division between how we allocate the ‘it’ -- whether the “it” is allocated to individuals or whether the “it” is distributed across society.  Said another way, do benefits and burdens accrue towards individuals, or do they accrue against soceity collectively? 

So if we were locating the law of accident, we might draw a wide circle around the middle, crossing both axis, but not covering the whole of the it.  After all, torts includes both allocated and distributed policies and is animated by policies undergirded by express and implied consent.  Nuisance and Strict Liability might find themselves at the poles, balancing both allocative and distributive policies, and balanced also between public and private spheres.  

 

And the ‘it’ -- well the ‘it’ for me is property, or more broadly entitlements.  And sometimes, the 'it' may be things that look like property or entitlements.   In my mind, Property becomes the canvas upon which all other courses are built. Granted, my canvas has many holes -- and relies upon many fictions.  But it is the narrative I find myself retelling.   I am curious - do you see your subject in similar constructs? 

 

Comments

[Ralph]

I don't see "negligence" there. Isn't the "it" to which you refer the sum total of public and private assets that can be redistributed, either publicly or privately, under the purview of the civil law system? If so, I don't see how your mention of "criminal law" fits on the diagram. Additionally, if tort is defined as injury outside of contract, then damages that pass as a result of it are a product "implied consent," to the extent that a citizen subjects himself to existing laws. One would withdraw that implied consent by not living her or doing business here.

[Marc]

Ralph -- I would say the It is the sum total of property based policies that germinate in other courses. In some instances we refer to these principles according to markets and sometimes we refer to them as social collective responses. So, in the case of contracts, while the animating principles underlying contract theory might tend to defer to allocative responsibility towards express consent, we also recognize other policies that are more distributive -- such as efficient breach and concepts of excuse. Regarding torts policy, recall that original to our conceptions of duty were the concepts of privity. We also have no problem expanding liabilities according to more explicit contract like agreements -- vicarious liability, joint enterprise, etc... But yet, these concepts are not static towards contracts at all -- they incorporate notions of distributive policies as well. So perhaps the It is the sum total of animating principles -- of which in my narrative, property is intimately involved....

[International News]

Great article ..a must read for everyone. the world is so full of hate right now and peace is needed like never before ..your article is an eye-opener in terms of how inner peace and non-judgmental behavior is so important..