Introduction to the Law of Torts
Introduction to the Law of Torts
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  • ISBN-13: 9780929563541
  • ISBN: 0929563549
  • Publisher: Pearson Education



THE STUDY OF LAW AND THIS BOOK In this book and others that you may read during your education, you will be the victim of a gentle deception. It is easy to assume that the purpose of reading case excerpts is to glean the legal principles they present and understand the thinking that goes into concepts like negligence, strict liability, defamation, and many others. Your instructors will encourage this by giving you cases to brief in which you will place portions of case holdings into relatively neat pigeonholes. The problem with this approach is that it overlooks the most important part of a case: the facts. All case law is fact driven. As Justice Oliver Wendell Holmes remarked, "The life of the law has not been logic: it has been experience." In other words, legal principle rarely emerges from abstract study. It generally arises when two people are having a dispute, and they seek a neutral arbiter to resolve it. The law has the same roots as a parent resolving a dispute between two children - the need for peace among disputants and for predictable rules to resolve disputes. Admittedly, this is oversimplification, but it still catches a great deal of the common law legal process. Think about it. Someone files a lawsuit in which one alleges that another (or others) has done wrong. That person asks the court for some kind of remedy. The defendants can file a response asserting their defenses. Ultimately, with or without discovery or other proceedings, the parties present their evidence to the court or jury. Based upon what is presented (or not presented) in the trial, the judge fashions jury instructions that embody the law applicable to the situation existing between the parties. What if there is no jury instruction that precisely meets the needs of a particular case? Then the courtcreatesone. The parties often have a voice in this process, and some intensely practical judges allow the parties to put forward the instructions they want, reasoning that the parties will have to defend the jury charge on appeal. At some point, though, the judge gives instructions to the jury on the law. It is this moment -- essentially the judge'sreactionto the factual evidence in the case and his or her decision as to what rules should apply -- that embodies more than any other the process by which the law evolves. If the trial judge gives a new instruction, one that goes beyond or 1n a different direction from prior law, the change in law is immediate. An appellate court may choose not to permit the change. But in doing so, the appellate court generally must consider what the trial court did and why it did it. Lawyers and judges, being who they are, cannot consider anything without commenting about it, and comments lead to opinions, which you get to read! Conversely, if the judge refuses a party's request for an instruction or theory, that party can ask the appellate court to require the trial judge to give the requested instruction. Again, this requires the appellate court to consider the merits of permitting the change, and in doing so, it still must consider what the trial court did and why it did it. This process goes on thousands of times every day, and it is the vehicle by which our common law expands. Still, it does not quite explain why you should focus on facts. The importance of the facts in each case becomes clearer when we add another goal: predictability. People benefit by knowing in advance the likely outcome of doing or not doing something. Just as children learn not to do something because they see other kids go to "time out" or be spanked, grown-ups and businesses can look at what has happened to others with similar problems and predict what will happen if they try it. Where do they look? To court decisions that have the same or similar facts as their own situation, of course. The common law encourages this reflection and comparison through aAlleman, Thomas is the author of 'Introduction to the Law of Torts' with ISBN 9780929563541 and ISBN 0929563549.

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