Fletcher’s paper serves both as an introduction to issues concerning tort law and the presentation of two points of view on it. One, which he calls the “paradigm of reasonableness,” has a utilitarian or consequentialist character. The other, which he calls the “paradigm of reciprocity,” could be described as deontological.

Assignment for Mon 4/2: §§I-II (pp. 537-556)

The first section of the paper provides an introduction to both perspectives, but the bulk of Monday’s assignment is §II, which concerns the paradigm of reciprocity. To say that this represents a deontological perspective on tort law is to say that it takes as fundamental certain rights or duties that might be expressed as rules or principles. What do you think such rights and duties (or rules and principles) might be like in the case of reciprocity? The idea of excuses plays an important role in this perspective on torts so you should closely both at the examples Fletcher gives of excusing conditions and what he says about the general role of excuses.

Assignment for Wed 4/4: §§III-V (pp. 556-573)

Sections III and IV form the heart of Fletcher’s account of paradigm of reasonableness. The first is a historical introduction largely concerned with views of the relation between excuse and justification. (Holmes’ account of the same range of issues appears in ch. 3 of The Common Law, which is among the texts on the course Blackboard site; his discussion of Brown v. Kendall is on pp. 105f.) In section IV, Fletcher further clarifies what he takes to be the issue between the two paradigms, and motivates an argument against the reasonableness paradigm by way of a consideration of motivations for strict liability in criminal law.

In section V, Fletcher further sharpens his distinction between the two paradigms, turning at the end to a comparison of the sort of reasoning each involves. (One of the cases he mentions, Palsgraf, is the case concerning an accident on a railway platform that we discussed briefly in class. If you are curious about the details, you can find the decision at

http://www.courts.state.ny.us/history/cases/palsgraf_lirr.htm

Cardozo’s opinion advances the idea of foreseeability while Andrews’ dissent focuses on the idea of “proximate cause.”)