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IV. Defenses: Overriding the Choices of Others

Nearly any defined pattern of wrongdoing is likely to admit exceptions. The slipperiness of language is in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. That makes contract drafting a high exercise of craft, and it also is offered as a virtue of the common law over civil law. But it’s still important in many instances to try to anticipate exception and nuance in a body of rules — whether in public statutes, the “private law” comprising a contract between two parties, in a Restatement of tort drawn up by a panel of distinguished legal scholars, or in the pronouncement of a state’s highest court as it articulates a new cause of action and tries to draw its boundaries.

Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie — “at first glance” — case for a wrong. For example, we might start by defining a battery as an “unconsented touching that’s harmful or offensive to a reasonable person.” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could derive sometimes from the merest of touchings, but a case would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition then accompanied by a set of defenses?

Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of apparent self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” — in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper — “efficient,” even — level or amount of such harm in society?