This seminar will explore a topic in the theory and practice of tort law. The topic will vary over time. A topic may be selected because it is an enduring question in the theory and practice of torts and related fields. Or it may be chosen because it is of immediate practical interest. The concept of responsibility is an example of the first kind of topic. Responsibility plays a central role in both civil (tort) and criminal law, and in the morality of interpersonal relations. In law, responsibility is closely related to the idea of liability to make reparation, or to abate a harm, or to cease harmful conduct. Outside of law responsibility can make one liable for moral blame and resentment. In these different contexts, liability depends on the various mental states (mens rea) of the agent. In tort, where negligence and strict liability are common, liability often seems to depend on the absence of some mental state. For example, negligence often involve inadvertence or “indifference”. These seem to be matters of not paying attention. Predicating responsibility on a “blank” state of mind makes negligence controversial, especially in criminal law. A seminar on “Responsibility in Tort and Criminal Law” would explore some classic and contemporary texts by legal theorists and philosophers on the topics of responsibility liability, and negligence. Readings for a seminar exploring the links between tort and responsibility might be drawn from the work of legal theorists and philosophers such as Oliver Wendell Holmes, H.L.A. Hart, Joseph Raz, Arthur Ripstein, John Gardner, Seana Shiffrin, Jeremy Waldron, and Ernest Weinrib. The wrong of “public nuisance” is an example of the second kind of topic. On the one hand, the wrong of public nuisance is ancient. The English legal cases in which our modern cause of action originates are older than the American Republic itself. On the other hand, in our time public nuisance has become the preferred cause of action for pursuing the major mass disasters of our age—opioids, tobacco, climate change, guns, and lead paint, among others. The very plasticity of the wrong has both made it useful for these diverse actions and controversial. Critics think the wrong simply violates basic canons of legality. A seminar on “Public Nuisance” would explore the wrong in both its traditional and modern incarnations, with an eye to determining if it is a coherent and justifiable civil wrong. Readings for a seminar on “Public Nuisance” would be drawn from primary legal materials (cases and statutes) and from classical and contemporary legal scholars analyzing the wrong.
