Mon. 4/2: §§I-II.A (pp. 537-551)

Wed. 4/4: §§II.B-III (pp. 551-564)

Fri. 4/6: §§IV-V (pp. 564-573)

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 Mon. 4/1: §§I-II.A (pp. 537-551)

The first section of the paper provides an introduction to both perspectives, but we will also discuss the beginning of his account of the paradigm of reciprocity in §II.A. It was suggested above that this perspective takes rights and duties (or rules and principles) as its starting point—assuming that is right, think what the relevant rights or duties might be like.

Topics for Wed. 4/3: §§II.B-III (pp. 551-564)

We begin with the second part of Fletcher’s account of the first paradigm in §II.B, which concerns the idea of excuses. You should closely both at the examples Fletcher gives of excusing conditions and what he says about the general role of excuses. We will also his account of the paradigm of reasonableness in §III. This is a primarily historical introduction that is largely concerned with views of the relation between excuses and justifications. (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 the case Brown v. Kendall is on pp. 105f.)

Topics for Fri. 4/5: §§IV-V (pp. 564-573)

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 considering considering the use of strict liability in criminal law. Finally, 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.nycourts.gov/reporter/archives/palsgraf_lirr.htm

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