Full Description
Conflict between Equals argues that tort law has to be understood and ultimately vindicated as the actualization of two theories: the conflict and the equality theory of tort law. It is not harm, wrongdoing, or social cost that gives us reason to have tort law in the first place. Instead, it is human conflict-specifically, conflict between our fundamental interests-that serves as the moral function of tort law. How we respond to such conflicts determines which harms, wrongs, or costs should, if at all, be addressed by tort law.
The conflict theory elaborates on the nature and normative significance of three types of conflict: inherently valuable, tolerably valuable, and valueless. The theory emphasizes the importance of preventing valueless conflict, containing tolerably valuable conflict, and constructing the conditions necessary for inherently valuable conflict to arise. Moreover, the human conflict to which tort law responds reflects a commitment to treating the parties to a conflict as equals. The equality theory is grounded in the egalitarian ideal of relating as equals, thus tort law must determine terms of interaction that take seriously differences in the interests and conditions of the interacting parties. By doing so, tort law secures the ability of the parties in a conflict to relate as substantive, rather than merely formal, equals.
Contents
Part I. Tort Law's Challenges
Introduction
Chapter 1: Why Tort Law? Two Challenges
PART II. THE CONFLICT THEORY OF TORT LAW
Chapter 2: The Conflict Theory: Foundations
Chapter 3: Inherently Valuable Conflicts: Elaboration and Illustrations
Chapter 4: Tolerably Valuable Conflicts: Duties Liberate
Chapter 5: Valueless Conflicts: Why and When Suing in Tort Law Matters
Chapter 6: Valueless Omissions: Easy Rescue Redux
Chapter 7: The Legal Practice of Conflict: Tort Law in Action
Chapter 8: The Propriety of Proprietary Conflicts: Nuisance Law
Chapter 9: The Propriety of Proprietary Conflicts: Trespass Law
Chapter 10: The Tort of Discrimination
Part III. The Equality Theory of Tort Law
Chapter 11: Equality First
Chapter 12: Why Tort Duties? Why Tort Law? Relating as Agents
Chapter 13: Tort Duties for Egalitarians: Relating as Substantive Equals
Chapter 14: Due Care and Substantive Equality: Hand Formula Redux
Chapter 15: Egalitarian Accommodation
Chapter 16: Equality and Uncertainty: the Burden of Proof in Tort Lawsuits
Chapter 17: The Tort of Private Censorship
Part IV. Concluding Remarks
Conclusion
