University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Study questions: chapter 4, “Torts, Contracts, and Property”

The following questions are intended to guide your reading of the assigned texts by calling attention to key concepts, distinctions, principles, and other parts of the texts. The questions are listed in the order in which their answers should become evident to a close reader.

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  1. pp. 111–124 (based on questions written by Devin Sikes)
    1. What purpose does private law serve in addition to defining and prohibiting private harms?
    2. What are the two main distinctions in the traditional view of private law?
    3. According to the traditional view, how are the correct rules of private law determined? What government officials are most likely to perceive and act on the correct rules?
    4. How do the labor injunctions of the late nineteenth and early twentieth centuries follow from the traditionalist interpretation of property law?
    5. What are the two main features said to differentiate tort law from contract law?
    6. On what basis do critics of the tort–contract distinction claim that contractual obligations are actually imposed by society, not self-imposed?
    7. On what basis do critics of the tort–contract distinction claim that damages awarded for breach of contract are similar to those awarded for tortious conduct?
    8. How do defenders of traditionalism reply to the claim that courts’ usual practices of interpreting the terms of a contract (via the standard meaning of the terms instead of the parties’ intentions) mean that contractual obligations are actually imposed by society, not self-imposed?
    9. How do defenders of traditionalism reply to the claim that courts’ use of reliance-based damages shows that the damages awarded for breach of contract are similar to those awarded for tortious conduct?
  2. pp. 124–133 (based on study questions written by Laura Rose Barr)
    1. What is the difference between subjective and objective approaches to self-defense law? The issue of self-defense is a criminal matter, not part of tort law. What is an example from tort law illustrating the difference between subjective and objective approaches?
    2. What are the two versions of the objective approach described by Altman? How do they differ?
    3. On what basis do advocates of the subjective approach criticize the reasonable-person approach?
    4. How is subcategorizing a compromise between a subjective approach and a standard reasonable-person approach? How can the subcategorizing approach be illustrated by the example of sexual harassment?
    5. What is the common-law approach to the duty to aid?
    6. Ames and Feinberg agree that we have more of a duty to aid than is implied by the common-law approach to the duty to aid. How do the approaches of Ames and Feinberg differ?
  3. Thomson, “Remarks on Causation and Liability”
    1. Which of the three usual requirements for a plaintiff’s winning a tort case is the focus of this article?
    2. In the case of Summers v. Tice, on what grounds did the California Supreme Court hold that each defendant was liable for the plaintiff’s injury?
    3. In section IV, on what grounds does Thomson say that “there really is a measure of unfairness to the defendants” in Summers v. Tice when they are each held to be liable? Why, according to Thomson, is this apparent unfairness not sufficient to warrant a ruling in favor of the defendants in this case?
    4. In section V, what grounds does Thomson give to justify the ruling that the plaintiff is entitled to collect full damages from any single one of the defendants?
    5. What familiar rule of tort law would imply, in the case of the cab companies (at the beginning of section VIII), that the Red Cab Company should be held liable for all of the plaintiff’s damages?