Tues. 4/6: §§I-II (pp. 537-556)

Thurs. 4/8: §§III-V (pp. 556-573)

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” (i.e., it takes rights and duties rather than the consequences of actions as its starting point).

Topics for Tues. 4/6: §§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. It was suggested above that this perspective takes rights and duties (or rules and principles) as its starting point—if so, what might these be like? 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.

Topics for Thurs. 4/8: §§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 Moodle 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 sorts of reasoning each involves. (One of the cases he mentions, Palsgraf, is often discussed. 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.”)