Ten Half-Truths About Tort Law
57 Pages Posted: 21 Apr 2008
John Kenneth Galbraith coined the phrase "the conventional wisdom" to refer to a collection of ideas that members of a group find acceptable. Acceptability, he observed, rests on a variety of considerations other than veracity, which means conventional wisdom can be wrong. Sometimes it is dead wrong. Other times it blurs truth and falsity. In the latter case, it might be said to contain half-truths.
Because professors are in the business of critical inquiry, one might think that they are less reliant on "mere" conventional wisdom, but this supposition is false. Conventional wisdom plays as much of a role in academia as in other walks of life. The concern of this Article, based on the 2007 Valparaiso University Monsanto Lecture, is to explore conventional wisdom among torts professors, and perhaps law professors more generally. Specifically, it identifies ten half-truths embedded in standard academic depictions of tort. Because each distorts as much as or more than it enlightens, each must be discarded. The point of this exercise is conceptual and pragmatic. The immediate goal is to clarify; the further hope is that clarification might lead to better judgments about how to adjudicate tort cases, how to undertake legislative reform of tort law, and how to teach torts.
Keywords: Accidents, Addison, Claims, Common Law, Compensation, Delict, Hilliard, Half-Truths, Holmes, Injury, Insurance, Make-Whole, Policy-Making, Pluralism, Standards of Liability, Settlement, Theory, Top-Down Theory, Torts, Trespass, Wrongs
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