Ken Simons has posted to SSRN Understanding and Justifying Tort Law’s Intent Doctrines, a paper he will present at Southwestern next week. The abstract provides:
This paper carefully and thoroughly explores tort law’s intent doctrines and considers the extent to which moral principles can help explain and justify them. By “intent,” I mean doctrinal requirements of purpose or knowledge, either as to a result of the actor’s conduct or as to a circumstance element of a tort. The paper concentrates on three fundamental questions. How do intentional torts differ from torts of negligence? Why do courts treat them differently? Are they justified in doing so?
The paper also discusses intentional torts (such as trespass) that have strict liability elements. The existence of such elements undermines the conventional, simple tripartite classification of torts into three simple categories—intent, negligence, and strict liability—under which intentional torts involve the most serious fault, negligence less serious, and strict liability no fault at all. Instead, it is sometimes more accurate to identify intentional torts as merely the residual category for torts other than those based on negligently causing harm or based on strict liability for causing harm. We will see that the Simple Fault Hierarchy view explains some aspects of intentional tort doctrine, while the Residual View explains others. And there is a third problem that complicates the task of defining the intentional tort category: many torts have multiple fault or culpability elements. An “intentional” tort may require negligence or no fault at all (i.e. it may impose strict liability) as to some elements.
Section 2 of the paper explains some key characteristics of intent doctrines as an interpretive matter, identifying different types of intent (purpose, knowledge to a substantial certainty, motive), and different objects of intent (results and circumstances). It then notes some problems with the Simple Fault Hierarchy. And it addresses multiple doctrinal functions and implications of a finding of intent.
Section 3 departs the realm of legal doctrine and explores intent in ordinary morality and moral philosophy, from both deontological and consequentialist perspectives. This Section first examines how intent is relevant to wrongdoing (or impermissibility) and culpability, which in turn are relevant to whether the conduct in question deserves moral criticism or blame. Pertinent here is the moral philosophy literature concerning the doctrine of double effect and whether an improper intention makes otherwise permissible conduct impermissible. The Section then considers a different question: what ordinary morality or moral principles say about whether and how intent is relevant to whether an actor should compensate the victim of his conduct.
Section 4 turns to the internal perspective of judges who create and revise tort doctrine and considers how they invoke moral arguments when deciding whether, when, and how to require intent as an element of a tort. Section 5 identifies four doctrines at the borderline of intent and negligence, to reveal in more detail how courts understand the domains of intentional tort and negligence. The doctrines are: fault concerning non-intent elements; intentional tort claims preempting negligence when facts support either claim; statistical rather than individualized knowledge; and transferred intent.