Band 11, Heft 2 -

I have been a judge for twenty-four years and have taught Torts for sixty years. What has all that taught me about Torts, about federal-state relations in this field, and about judges and judging? The first thing I learned is how important Torts and Torts reasoning are in many areas that we don’t think of as being traditionally Torts. The second thing I have come to realize is how significant federal preemption has become to the field. The third thing I have come to understand is why judges and judicial lawmaking are particularly important in Torts: the people who are active in pushing and resisting Torts “reforms” before legislatures are bound to be repeat players; courts, instead, are invoked by non-repeat parties. My fourth realization upon becoming a judge is a completely different one: there are situations in traditional Torts-negligence law that seem sufficiently rare to require little attention but are, in fact, central to areas of law that a federal judge sees all the time. My fifth point has to do with how little federal judges in general, and federal appellate judges in particular, know or understand about Tort law. My last reflections go to something of a totally other sort. And that is the difference I have come to see in the roles of scholars and of judges. It is often said of judges that they should “do justice though the heavens fall.” That is, of course, nonsense. A judge who truly risked causing the heavens to fall would be thrown off the bench in no time. The role of scholars is quite different. As scholars, our role is to tell and write the truth as we have come to see it, fully and courageously, though the heavens fall. Our job is to look in dark places, shine light on what we believe is really going on, and reveal what is actually occurring in the face of the human subterfuges and legal fictions that obscure the truth.

In novel cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness and past hypothetical facts about causation. In deciding both novel and routine cases on the basis of assumptions and experience, judges are prone to cognitive biases that affect decision-making in general.

Using selected lines from Robert Frost’s poem Mending Wall , this essay seeks to show how the poem can inform the common law of negligence. Best known for its line “good fences make good neighbors,” Mending Wall involves a narrator recounting his relationship with a neighbor, and the neighbor’s calm persistence that a good boundary wall makes good neighbors. The poem describes how and why, each spring, they walk together to fix a rock wall that is the common boundary of their property. This essay seeks to make the case for how Mending Wall also can inform the common law of negligence. After a discussion of how the author came to write the piece, the essay briefly discusses the context for, and some commentary about, Mending Wall , with the poem included in the Appendix. The essay then provides seven examples of how selected lines from Mending Wall can inform the common law of negligence. Starting with the adage that good fences make good neighbors, the examples help demonstrate when a legal fence needs to be solid and unyielding in delineating the elements of a prima facie negligence claim; when a fence provides an outer boundary for a negligence claim and when a fence is a boundary excluding a negligence claim; when a fence is not needed to define the boundary between types of remedies; how a fence implies a division of labor in what a judge decides and what a jury decides; that the outlier case can try to pull down a fence and, finally, how gaps in a fence are the grist for the mill that is the common law. The essay seeks to show that Mending Wall can be used to help inform the common law of negligence, in certain respects when viewed in a certain way. It does so, the essay suggests, episodically. It provides glimpses and clues, not comprehensive directives, and offers general targets to focus on in the study of common law negligence. Viewed in a concrete way, Mending Wall is about neighbors fixing a stone wall they share on a cold, early spring day. But it is much more than that. In these ways, as the essay suggests, Mending Wall can inform the common law of negligence.

Punitive damages have been predominantly studied from a one-sided perspective focusing on the wrongdoer. The role of the tort victim in bringing the punitive lawsuit has often been curtly described either as some sort of private attorney general moved by a desire to deter undesirable behavior (i. e., playing a contingent role ) or as an agent exercising her legal power to exact a punitive sanction by virtue of what the defendant did to her and how it was done conceived in terms of just deserts (i. e., playing a necessary role ). I argue, conversely, that the victim’s intrinsic response to deliberate wrongdoing involves much more than the mere imposition of punishment: it involves who we are and the meaning we construe from the circumstances of wrongdoing seen as a deliberate threat to our individual autonomy, dignity, physical integrity, or even life. A more meaningful understanding of punitive damages is thus available from considering the rich value-laden lay intuitions that drive people to punish certain behaviors. The mind sciences and in particular the social psychology and social cognition literature on human actors’ motivations for punishment offer valuable insight into moral outrage and betrayal aversion as rich retributive intuitions. Together, these intuitions comprise a significant element that is still missing from the predominant understanding of punitive damages, one we must not overlook.