Policy Justifications of the court Forum

[brickman]

So it seems like they are always pretty broad, at least in torts thus far:

To avoid people getting away with hurting people without intention, to avoid letting people hurt someone they didn't intend, etc.

I mean there are more specific considerations, though they are only hinted at in the notes sometimes, such as the defendant was poor, the company's product is everywhere.

I'm just not sure how specific or broad I should go or whether I should just try to get a grasp on everything (though a lot of the justifications are tied to facts)

Any advice?

[kaiser]

My torts course focused very little on policy, but I can tell you one of the main trends of policy behind tort law

-To encourage people to seek legal recourse rather than taking matters into their own hands. This is the absolute biggest goal of tort law. Punishing the wrongdoer certainly factors into the equation, but the real goal is not a retroactive one, but a proactive one: preventing further wrongs in the future, rather than punishing those which have already occurred

[brickman]

My torts course focused very little on policy, but I can tell you one of the main trends of policy behind tort law

-To encourage people to seek legal recourse rather than taking matters into their own hands. This is the absolute biggest goal of tort law. Punishing the wrongdoer certainly factors into the equation, but the real goal is not a retroactive one, but a proactive one: preventing further wrongs in the future, rather than punishing those which have already occurred

Gotcha. My concern though is when I'm trying to make an argument on the exam that i'll need to supply a greater number of arguments, some of which are subtle or are just in some of the bullshit notes that follow a case.

[kaiser]

My torts course focused very little on policy, but I can tell you one of the main trends of policy behind tort law

-To encourage people to seek legal recourse rather than taking matters into their own hands. This is the absolute biggest goal of tort law. Punishing the wrongdoer certainly factors into the equation, but the real goal is not a retroactive one, but a proactive one: preventing further wrongs in the future, rather than punishing those which have already occurred

Gotcha. My concern though is when I'm trying to make an argument on the exam that i'll need to supply a greater number of arguments, some of which are subtle or are just in some of the bullshit notes that follow a case.

Totally depends on the professor. As I said, my professor couldn't care less about the policy rationales behind tort law and we didn't have to spend a single word on the exam discussing it. Many policy rationales for tort law are pretty intuitive (i.e. convincing people to seek legal recourse, punish wrongdoers, etc). Ask your professor how much policy rationale you should keep up with. You will get a feel pretty quickly if he/she really values policy discussion.

[spleenworship]

I have been thinking about this too. The stuff seems very broad... "Fairness" is frequently a policy consideration given...

And yet I cannot help but feel that if I write on an exam "On the balance it seems likely that the court will find against Mr. Spleen and find him liable for roto-rootering his neighbor's cat. However it seems likely that in the interest of fairness, given the extenuating circumstances Spleen faced, the court might mitigate the damages offered." that I will be labeled as a douche. I don't know, I just have the sensation that appeals to fundamental principles will seem... naive?

[target]

Totally depends on the professor. As I said, my professor couldn't care less about the policy rationales behind tort law and we didn't have to spend a single word on the exam discussing it. Many policy rationales for tort law are pretty intuitive (i.e. convincing people to seek legal recourse, punish wrongdoers, etc). Ask your professor how much policy rationale you should keep up with. You will get a feel pretty quickly if he/she really values policy discussion.

+1.

This is where your prof's past exams are helpful. Skim through them to see if your prof have questions on policy.

[kalvano]

I have been thinking about this too. The stuff seems very broad... "Fairness" is frequently a policy consideration given...

And yet I cannot help but feel that if I write on an exam "On the balance it seems likely that the court will find against Mr. Spleen and find him liable for roto-rootering his neighbor's cat. However it seems likely that in the interest of fairness, given the extenuating circumstances Spleen faced, the court might mitigate the damages offered." that I will be labeled as a douche. I don't know, I just have the sensation that appeals to fundamental principles will seem... naive?

Change "in the interest of fairness" to "in the principle of fairness espoused in Winken v. Blinken and Blinken v. Nod, the court would still find Mr. Spleen liable for the senseless slaughter of the feline in question, but given the circumstances surrounding the case, might limit the damage award" and you've got a pretty good closing for the exam. Then go a little more with why it would be fair to do so, and how general policy / court decisions seem to lean that way.

It's not douchey to apply the law and then draw a conclusion based on the given case law. It is, in fact, what they are looking for. But if you're going to say something like "in the interests of fairness", back up where you are getting that from.

But remembering to analyze damages and what they might or might not be could be the difference between a B+ and an A-. A lot of people get wrapped up in the elements of the tort and the possible defenses and forget the damages.

[morris248]

Here are some past torts exams and answers

http://guweb2.gonzaga.edu/~dewolf/torts ... am_ind.htm

http://www.law-school-books.com/torts.html

it would be unusual to talk about policy on a torts exam

[brickman]

I have been thinking about this too. The stuff seems very broad... "Fairness" is frequently a policy consideration given...

And yet I cannot help but feel that if I write on an exam "On the balance it seems likely that the court will find against Mr. Spleen and find him liable for roto-rootering his neighbor's cat. However it seems likely that in the interest of fairness, given the extenuating circumstances Spleen faced, the court might mitigate the damages offered." that I will be labeled as a douche. I don't know, I just have the sensation that appeals to fundamental principles will seem... naive?

Change "in the interest of fairness" to "in the principle of fairness espoused in Winken v. Blinken and Blinken v. Nod, the court would still find Mr. Spleen liable for the senseless slaughter of the feline in question, but given the circumstances surrounding the case, might limit the damage award" and you've got a pretty good closing for the exam. Then go a little more with why it would be fair to do so, and how general policy / court decisions seem to lean that way.

It's not douchey to apply the law and then draw a conclusion based on the given case law. It is, in fact, what they are looking for. But if you're going to say something like "in the interests of fairness", back up where you are getting that from.

But remembering to analyze damages and what they might or might not be could be the difference between a B+ and an A-. A lot of people get wrapped up in the elements of the tort and the possible defenses and forget the damages.

So assuming I've got a professor that cares about policy, it's probably in my interest to pay close attention to the policy justifications of the court in the cases, and maybe echo some of their language when it comes to that elements discussion in relation to fairness.

Edit: maybe replace policy justifications with policy rationale behind the rule as something that competes with the rule as it is stated. Or am i getting into a whole other zip code.

Example (in legal analysis of a fact situation): The law states x, if we read this literally then it may be the case that it will turn out a. If we look at the policy justification for the law as stated in case ABC we find that it may come out b.

[spleenworship]

Change "in the interest of fairness" to "in the principle of fairness espoused in Winken v. Blinken and Blinken v. Nod, the court would still find Mr. Spleen liable for the senseless slaughter of the feline in question, but given the circumstances surrounding the case, might limit the damage award" and you've got a pretty good closing for the exam. Then go a little more with why it would be fair to do so, and how general policy / court decisions seem to lean that way.

It's not douchey to apply the law and then draw a conclusion based on the given case law. It is, in fact, what they are looking for. But if you're going to say something like "in the interests of fairness", back up where you are getting that from.

But remembering to analyze damages and what they might or might not be could be the difference between a B+ and an A-. A lot of people get wrapped up in the elements of the tort and the possible defenses and forget the damages.

Thank you for this advice.

Also, to OP above: I would say that from everything I have read here on TLS, yeah, definitely pay attention to whether your prof likes policy, and then echo the language of the cases they talked about the policy in a lot.

[random5483]

Unless your Torts professor highlights policy arguments, don't worry about them too much. Torts, like crim law, is elements based. Know your elements and analyze the facts to the elements in your exam. One or two lines of policy arguments won't hurt, but usually, you will lack the time to do this. I booked my Torts class without making any policy arguments (I might have briefly analyzed the policy basis behind the two views in Palsgraf, but if I did it was very short). Unlike Property where policy arguments tend to be important, in Torts, a policy argument is often a waste of time on the final.


As mentioned above, get to know what your professor wants. Look at old exams/model answers if available. Law professors don't all fit a single mold, and some Torts professors might place a higher emphasis on policy arguments. If no exams are available, talk to your professor/former students/etc, and figure out what your professor looks for. More likely than not, a Torts professor is not looking for policy arguments.