As this casebook’s title suggests, I consider (and will present) tort law as the capacious, foundational doctrines of liability for civil wrongs, arising mostly from the Anglo-American common law tradition but supplemented (more recently) by legislative regulation. Several aspects of this description are worth analyzing, i.e. breaking down.

First, the name of the field, the course, etc. Torts is, alas, not about tortes (cakes) or tortas (sandwiches) but about wrongs. The word “tort” comes to us from Latin by way of French. The Latin root, present in words like “torture” and “tortuous,” means to bend or to twist; the Old French noun tort meant error or wrong. And to tell someone in contemporary French that I am wrong or incorrect about something, I would say J’ai tort. The fact that this field of law goes by such a transformed, culturally specific name says a lot about how much it embodies our common law tradition. Anglo-American law descends of course from English law; the courts of the colonies that became the United States were English courts, and the law that they enforced in states that would later join the Union was, in general, a law based fundamentally on English legal, political, and social traditions.

Wrongs, to put it simply (and maybe a little obviously), are violations of rights; or they are violations of our interests, and rights are our entitlements to a remedy; or perhaps both. There is a lot here that tort theorists work on unpacking to this day. But what matters for us is that a wrong, because it involves violation of a right or interest, gives rise to a claim or cause of action, i.e. a ground for an injured person to sue their alleged wrongdoer for a remedy. What count as wrongs in state, federal, and some tribal courts throughout the United States are conventions that we have inherited. And for ease or simplicity, we often use “tort” or “wrong” or “tort claim” interchangeably to refer to any one of a litany of causes of action: battery, assault, false imprisonment, fraud, trespass to land, trespass to chattels, negligence, etc. As a mere introduction to this massive field of law, our course is above all about understanding those conventional causes of action, especially what counts as a given tort and what does not.

Second, tort law governs civil, not criminal, liability. The bifurcation of civil regulation, lawyering, and judging on the one hand from criminal regulation, lawyering, and judging on the other is conventional: the dichotomy reflects social convention (our forebears’ choices specifically) on how to structure a legal system to resolve disputes, remedy injustices, and even shape behavior. We can think of this dichotomy above all as a matter of (1) who sues whom, i.e. who takes whom to court, and (2) for what kind of relief.

In criminal practice, governments sue their constituents (and others under their jurisdiction) for allegedly violating statutes, ordinances, and other written declarations of what counts as publicly sanctionable misconduct. Publicly sanctionable? Meaning punishable through direct government action, e.g. government-levied fines and incarceration. Broadly speaking, criminal law aims to vindicate the public’s interests in safety and security, including an accused person’s rights to fair adjudication of their alleged wrongdoing. There are other more specific and intensely debated objectives, like retribution, deterrence, and incapacitation, objectives explored more in Criminal Law. The main idea here is that a city, a county, a state, a tribe, or the federal government may criminally prosecute someone who might have violated the relevant community’s stated code of conduct.

In civil practice, meanwhile, private persons (and sometimes governments as private persons) sue others for allegedly violating their rights or causing them harm, in particular harm that we deem warrants corrective action enforced by courts, but not directly supplied by them. We? Meaning litigants, lawyers, and judges; but meaning our forebears too; and also our present society as a whole, when we sustain, strike, or modify the rules passed down to us. Corrective action? Meaning relief that might make a complaining party whole. Such relief can vary widely, but it classically ranges from damages (money paid by a wrongdoer to an injured person) to injunctions (court orders demanding that a party act or refrain from acting in a particular manner). In a broad sense, civil practice is a forum for individuals, organizations, and governments to seek justice directly from the people whom they allege have violated their rights or otherwise harmed them, mediated by courts and legal procedures.

A final few distinctions (for now) between tort law and criminal law: In civil cases, plaintiffs seek to prove defendants’ liability, not guilt. Criminal law focuses on the concept of guilt (and uses that word) in part because of its ancient fixation on criminal wrongdoers’ mental state and ostensible perception of their own moral culpability. Tort law, meanwhile, uses the more modern, less charged terminology: a plaintiff who prevails has shown that the defendant was liable to them. “Liability” simply means “legal responsibility.” Tort law and criminal law are also considered distinct in their purposes, the simplified version being that while tort is about compensation, crime is about punishment. We will return to tort law’s purposes periodically, in part to interrogate this perception further. Lastly, it is worth keeping in mind that procedural protections that we grant to criminal defendants, often as a constitutional matter, do not apply in tort cases. For example, there are no Miranda warnings in civil discovery; there is no privilege not to testify on grounds that you might concede liability; and there is no right to counsel, generally speaking. Moreover, the standard for proving liability in civil cases is not “beyond a reasonable doubt” (a high threshold) but merely the “preponderance of the evidence.” (More on the standard of proof for tort cases later.)

Third, a typical delineation of tort law is that it comprises civil wrongs not arising out of contract. This means at the very least that the interpersonal obligations recognized by tort law are independent of any obligations that we impose on each other through agreement. Put differently, the contracts into which we enter—and specifically the contract terms to which we agree—can redefine background legal obligations to which tort law would otherwise hold contracting parties accountable (though tort law remains lurking in the background). For example, a contract could validly limit one party’s liability, unless tort law ultimately forbids that kind of limitation as against public policy. But to spell out what might be obvious, a contracting party could be liable for breach of contract but not for any other tort, or could be liable in tort for causing harm but not for breach of contract, or both.

Some lawyers and scholars (myself included) take the position that breach of contract is ultimately a civil wrong and thus a tort. Our sense, to put it briefly, is that breach of contract must itself be compensable according to some principle that we have rights to the enforceability of agreements that we make with others. In other words, there could be no legal responsibility and compensation owed for a broken agreement unless failing to uphold one’s end of a bargain is itself a wrong. But one convention in many, if not most, law schools is to separate the study of liability for breaching contracts from the study of liability where there is no contract (or where breach of contract is secondary to other claims of wrongdoing). In this casebook, therefore, I do not press the point but present tort law as the body of legal rules governing rights and wrongs where formal agreements do not control. I leave to Contracts (the course) to explain the specialized rules governing the legal enforcement of promises and agreements.

Fourth, tort law in the contemporary United States is a product of the Anglo-American common law tradition. What is common law? Here is a short explanation from legal historians John Witt and Karen Tani, some of whose explanatory notes (in an open-licensed casebook of their own) I have included throughout this book:

We call tort law a common law field because it arises out of the body of legal norms and institutions inherited by the United States from England more than two centuries ago, when the United States won independence from the British Empire. In England, the common law was the law of the King’s courts in the centuries after the Norman Conquest in 1066. (The common law was the law common to those courts, as opposed to the church courts, borough courts, and the courts of the local nobility, each of which had its own law through the medieval and early modern periods.) Today, to say that a body of law is made up of common law principles is to say that it is mostly judge-made law, though tort is not necessarily exclusively so. State legislatures and the U.S. Congress increasingly alter the common law of torts. . . . Nonetheless, it is still fair to call torts a common law field. And as a common law field, torts is made up predominantly of state law, rather than federal law, though federal law has always played a role, especially in the past century, and even more so in the last two decades. To the extent that torts remains a subject of state law, its basic norms will vary from state to state, though usually with a wide area of consensus at its core.

John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, 6th Ed.

What count as wrongs in state, federal, and some tribal courts throughout the United States are conventions, ways that rights and wrongs have been and usually are adjudicated, not unchanging moral truths about what is right and wrong. This course is very much about understanding those conventions—especially what counts as a given tort and what does not—and it can be useful to keep in mind that most of the tort claims that we study were developed in times and places subject to Anglo-American legal culture. To be sure, there is great agreement across borders and cultures over what count as compensable wrongs. In courts worldwide, there is liability for intentionally interfering with another’s person or property or for negligently harming that person or property. However, the specific legal rules presented in this casebook, which is to say the foundational principles of tort law in the United States, derive inevitably from prior Anglo-American caselaw. Each of us stands in some degree of difference to England of 1066, even the British Empire and the United States of the 19th Century industrial revolutions, but we have inherited their legal cultures nevertheless.

Your relationship as law students to this pervasive conventionality might inform what you plan to do with your legal careers. More immediately, perceiving this conventionality will help you to understand why certain rules are they way they are. If you look closely, then you will see the hands of culture and technology all over the doctrine. There are rules shaped by agrarian practices of the English countryside; rules shaped by the multiple industrial revolutions ushering in steam power, electricity, and mass manufacturing; rules shaped by modes of transportation, from rail to automobile to air travel; and rules shaped by a deeply rooted love for individualism and individual rights in the political cultures of the United States and the British Commonwealth. To understand tort law is not to agree with all of its contours. There will invariably be rules that strike you as too strict or too lenient, as too general and imprecise or too hung up on details, or even as just right. But where there is daylight between a court’s holding and how you think that the case should have turned out, there is also something to learn about your own values and your relationship to the legal institutions of which you are training to be part.

APPEAL from the Circuit Court for Waukesha County.

The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. . . . At the date of the alleged assault the plaintiff was a little more than fourteen years of age, and the defendant a little less than twelve years of age.

The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84.

The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal . . . .

[That statement of facts read in part:

The plaintiff was about fourteen years of age, and the defendant about eleven years of age. On the 20th day of February, 1889, they were sitting opposite to each other across an aisle in the high school of the village of Waukesha. The defendant reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly. The next day he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr. Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to see him the next day, on the 25th. There was a slight discoloration of the skin entirely over the inner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations, and gave him anodynes to quiet the pain. This treatment was continued, and the swelling so increased by the 5th day of March that counsel was called, and on the 8th of March an operation was performed on the limb by making an incision, and a moderate amount of pus escaped. A drainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another incision was made to the bone, and it was found that destruction was going on in the bone, and so it has continued exfoliating pieces of bone. He will never recover the use of his limb. There were black and blue spots on the shin bone, indicating that there had been a blow. On the 1st day of January before, the plaintiff received an injury just above the knee of the same leg by coasting, which appeared to be healing up and drying down at the time of the last injury. The theory of at least one of the medical witnesses was that the limb was in a diseased condition when this touch or kick was given, caused by microbes entering in through the wound above the knee, and which were revivified by the touch, and that the touch was the exciting or remote cause of the destruction of the bone, or of the plaintiff's injury. It does not appear that there was any visible mark made or left by this touch or kick of the defendant's foot, or any appearance of injury until the black and blue spots were discovered by the physician several days afterwards, and then there were more spots than one. There was no proof of any other hurt, and the medical testimony seems to have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff. The jury rendered a verdict for the plaintiff of $2,800.

The learned circuit judge said to the jury: "It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say, that ought not to have come into court. The parents of these children ought, in some way, if possible, to have adjusted it between themselves." We have much of the same feeling about the case. It is a very strange and extraordinary case. The cause would seem to be very slight for so great and serious a consequence. And yet the plaintiff's limb might have been in just that condition when such a slight blow would excite and cause such a result, according to the medical testimony. That there is great uncertainty about the case cannot be denied. But perfect certainty is not required. It is sufficient that it is the opinion of the medical witnesses that such a cause even might produce such a result under the peculiar circumstances, and that the jury had the right to find, from the evidence and reasonable inferences therefrom, that it did.]

On the last trial the jury found a special verdict, as follows: "(1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) At what sum do you assess the damages of the plaintiff? A. $2,500."

The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff for $2,500 damages and costs of suit was duly entered. The defendant appeals from the judgment.

LYON, J.

. . .

1. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant's motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that "the intention to do harm is of the essence of an assault." Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.

Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

2. [Nevertheless, some witness testimony had been elicited improperly, warranting a new trial.]

3. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. C., M. & St. P. R. Co., 54 Wis. 342, to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. . . .

. . .

The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

Anatomy of a Torts Case

Vosburg v. Putney was a simple case. By now, it is an old case. But getting to the bottom of it reveals much about the complexities of American tort law right up to the present day.

At an elementary level, the case presents two kinds of questions that will run through the rest of this book and that are omnipresent in legal analysis: questions of fact and questions of law. There are, for example, questions of fact about causation. What caused the injuries to the leg? Would those injuries have come about anyway if Putney had not made contact with Vosburg on the 20th of February? There are also questions of fact about Putney’s intent: what did he mean to accomplish when he reached out and kicked his classmate?

The questions of law are different. They ask not what happened, but rather what the law is—or what it ought to be. For example, what kind of mental state does the law require for holding Putney liable? Is it sufficient that he intended to make a certain kind of contact with Vosburg? Or does Vosburg need to show that Putney further intended to harm him? Questions of law about Putney’s causal relationship to Vosburg’s leg injury would ask whether it is sufficient for Vosburg to show that Putney’s kick increased the likelihood of leg damage that was already in motion, or that Putney’s kick accelerated that damage.

Once we bring in some of the context for the court’s opinion, this little case from long-ago Wisconsin also serves as a remarkable introduction to the sociology, economics, and functions of tort law. Andrew Vosburg was a slight boy whose father, Seth (a Civil War veteran), worked as a teamster at a local lumber company. According to Professor Zigurds Zile of the University of Wisconsin Law School,

Vosburg was frequently bedridden with a succession of childhood illnesses. He caught scarlet fever at the age of eight and had two or three bouts with the measles. Yet he was raised as an ordinary country boy, obliged to do the customary chores around the homestead, endure discomfort and face the usual hazards associated with rural life. Bumps, bruises and lacerations were part of his workaday experience. Accidents just happened to Andrew; or perhaps they happened to him more often because he lacked the strength and dexterity the rigors of his environment demanded . . . .

Zigurds L. Zile, Vosburg v. Putney: A Centennial Story, 1992 Wis. L. Rev. 877, 879. George Putney, by contrast, was the only son of a prominent and prosperous local family. Zile reports that George Putney was described by a contemporary as “a sucker of a boy” with “a bad temper.” Id. at 882. In fact, George had a minor altercation with Andrew a couple weeks prior to the incident at the center of the litigation when George inexplicably prevented Andrew from retrieving his textbook before an exam.

The Vosburg family also initiated a criminal case against Putney. Passions, it seems, ran high in 1889 in Waukesha. Andrew’s father went to the town justice of the peace to file a criminal complaint against George on October 19, 1889. The justice of the peace issued a warrant to apprehend George, and a trial ensued. (This was the era before special criminal procedures for juveniles.) After witness testimony and cross-examination, the court found George guilty as charged in the complaint. He was ordered to pay a fine of $10, plus costs, amounting to a total of $28.19. The conviction was later overturned on appeal.

The civil and criminal cases arising out of the schoolboy’s kick soon involved substantial time and expenses. During the first jury trial in the civil suit, witnesses included Andrew, George, the boys’ teacher, and Andrew’s doctors. When the case was retried in the December term of 1890, the plaintiff subpoenaed eight witnesses and the defendant subpoenaed eleven. The third trial for Andrew’s case seemed imminent until September 1893, when the circuit court dismissed the case for the plaintiff’s failure to pay overdue court costs. In still another proceeding, Andrew’s father brought a claim against George Putney for the loss of his son’s services. A jury awarded Seth $1200 in damages against George, which the Wisconsin Supreme Court later affirmed. But even then, it does not seem that the Vosburgs ever collected any damages from the Putneys, perhaps because parents are not liable for the torts of their children. At the end of this long litigation process, there is no evidence that the parties ever exchanged any money.

All told, the dispute between these families lasted for four and a half years and never produced even a dollar in actual damages changing hands. The litigation was expensive, too. Zile estimated that the Vosburgs “would have incurred costs in the amount of $263 in order to get nothing.” Their lawyers probably spent considerably more in time and money in hopes of recovering a portion, usually a third, of the winnings. The Putneys probably paid at least $560 in lawyers’ fees and incurred additional costs summing to a further $677. Zile, supra, at 977.

The outsized expenses of the Vosburg case are not unusual in American tort law, at least not in the narrow slice of cases that go forward to trial. Observers estimate the administrative costs of the tort system—lawyers’ fees, expert witness fees, court costs, etc.—amount to between fifty and seventy cents for every dollar transferred from defendants to plaintiffs. The Vosburg case’s costs were almost exactly in this range: the parties together incurred some $1500 in costs in a dispute over two claims that juries seemed to value at around $3700 (a $2500 claim for Andrew plus the $1200 claim for Seth). The Vosburgs’ lawyers would have eaten up another one-third of whatever money the Putneys paid, for a total of around $2700 in costs on $3700 worth of tort claims. The Vosburgs would only have recovered $2500 after subtracting their lawyers’ fees. This is equivalent to a costs-to-value ratio of more than 1, a figure that is vastly higher than the administrative cost ratios that attach to, say, disability claims in the Social Security system, where costs are typically closer to ten percent of the value of the claim. Tort administrative costs are vastly higher than first-party insurance administrative costs, too: victims of injuries can much more cheaply process claims for covered injuries from their own insurance companies than they can prosecute tort claims through the courts.

The Pervasiveness of Settlement

Given how counter-productive the litigation was, one great mystery in Vosburg is why the families did not reach a settlement. The initial trial judge seems to have thought the matter ought to have been resolved before trial. The original appeals panel agreed. And there were settlement negotiations. By the early fall of 1889, the Vosburgs had already incurred substantial medical costs and were facing another year and a half of care, eventually costing at least $475. After the Vosburg family retained a lawyer,

Seth and Janet Vosburg and one of their attorneys called on Henry Putney [George’s father] at his store, and the incident “was talked over amongst [them].” The Putneys offered to pay Dr. Bacon’s bills [about $125 accrued to date] and an additional amount of $125 towards medical and other needs in return for releasing George from any liability arising out of the February 20 incident. The Vosburgs, however, were not willing to settle for less than $700, which to them was a paltry sum, barely sufficient to meet the financial obligations already accrued, to set aside a reserve against outlays associated with Andrew’s convalescence and potential complications, like the amputation of Andrew’s diseased leg, and to pay the lawyers for negotiating the settlement. To the Putneys, by contrast, particularly if they looked at George’s role as peripheral, the sum of $250 might have seemed a generous price for the nuisance value of a threatened lawsuit.

Zile, supra, at 894.

The startling thing is that in hindsight any one of the proposals by either defendant or plaintiff would have been in the interest of the parties. Simply dropping the litigation in return for nothing would have been better than proceeding. Given the array of choices before them, litigating the claims to judgment seems to have been the worst choice available to the parties, and yet each of them chose to litigate rather than to accept settlement offers from the other side that (again, in hindsight) were vastly better than the alternative of trial.

So why didn’t the Vosburgs and Putneys settle if it was in their interest to do so? The mystery deepens when we see that virtually all cases end in settlement. One of the most important institutional features of American tort law is that it is almost entirely party-driven. The parties to a lawsuit have virtually complete autonomy in deciding whether to bring claims, how to manage those claims, and whether to withdraw from prosecuting them. The result is that almost all parties settle their disputes before trial.

Settlement has been widespread in American tort law for as long as modern tort law has existed, for more than a century and a half, and there is reason to think settlement is growing even more common in the past fifty years. In 2003, the American Bar Association Litigation Section held a symposium titled The Vanishing Trial, which concluded that the “portion of federal civil cases resolved by federal trial fell from 11.5 percent [of all filings] in 1962 to 1.8 percent in 2002.” Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 459 (2004). Between 2008 and 2012, a mere “0.56 percent or slightly more than one-half of one percent of all terminations” occurred by civil jury trials. Charles S. Coody, Vanishing Trial Skills, A.B.A. (May 22, 2013), https://perma.cc/QE5C-LPNS. The following chart, compiled by Marc Galanter, who led the ABA study, and his co-author, shows the stark picture of settlement in civil litigation generally:

Source: Marc Galanter & Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Inst. 1, 3 (2011), https://perma.cc/9NFE-AP2M.

Parties settle because, as the Vosburgs and Putneys learned, litigation is expensive and time-consuming. Many parties are risk-averse; they have a preference for the certainty that settlement offers. Moreover, there is reason to think that on the plaintiffs’ side, lawyers paid on a contingency basis, as a percentage of any settlement or award, will have an interest in avoiding long drawn-out proceedings. Settlement minimizes their workload, allows them to take on additional claims, and often allows them to maximize their imputed hourly wage.

Given the incentives for the parties and for the plaintiffs’ lawyers, why is it then that some parties like the Vosburgs and Putneys don’t settle? Looked at this way, the question is not why there are so few trials. The question is why there are any trials at all! Why doesn’t everyone settle?

One especially influential view is that where a case proceeds to judgment, at least one of the two parties, and perhaps both, must have incorrectly estimated the likely value of the claim. In this account, which was first offered by George Priest and Benjamin Klein, trials are errors. See George Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984). Consistent with this view, some observers suggest that the trend toward settlement since the middle of the twentieth century, at least in the federal courts, has been driven by the enactment of the Federal Rules of Civil Procedure (FRCP) in 1938, which authorized pre-trial discovery and deposition procedures that allow each side to learn virtually everything about the facts of the case in advance of the trial itself. Lawyers are thus able to develop quite accurate estimates of the value of the claim—much better estimates than pre-FRCP lawyers were able to form—which in turn allow the parties to settle their cases before trial.

Another view is that parties do not settle because there is something other than dollars and cents at stake in tort disputes. Parties persist, in this view, as a matter of principle. And many argue that we should encourage them to do so. In this latter view, articulated memorably by scholars like Owen Fiss and Judith Resnik, trials are not errors. They are the public forums in which we work out our social commitments and hold our ideals up for testing. See Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984); Judith Resnik, Whither and Whether Adjudication?, 86 B.U. L. Rev. 1101 (2006). Of course, if trials are intrinsically valuable as public fora, then settlement rates are startlingly high. For it appears that something about the tort system—and indeed, civil litigation generally—produces vast numbers of settlements and very few judgments.

—

Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Sixth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.