How to write a law essay?
A guide to writing an essay about the law. In this article, you will learn how to format a legal essay by answering a question on tort law and creating a plan for a research essay.
Question
‘It is inappropriate for courts to seek to take account of considerations of distributive justice in their decisions in tort, such factors are for the legislature alone.’ Critically evaluate this statement.
a) Introduction
Main thesis of essay: It is not inappropriate for judges to take into account distributive justice considerations in their decisions as they have always done it to a certain extent and where it is not the only justification for a decision and might lead to gross injustice otherwise. It is also not inappropriate for tort law to have an external goal, as its structure is flexible enough to allow for that.
b) Main arguments
Illegality
Randomness
Inefficiency
Excessive cost
c) Define principles of justice
Aristotle: Corrective justice and distributive justice
d) Principles of justice in relation to tort law
Weinrib: The only considerations that are relevant to adjudication are those correlatives between the two parties in a particular case. There is no place for a ‘hodgepodge of factors’ that may pertain to only one on the parties.
Coleman: The primary concern is the ex post circumstances of the transaction and not the character or culpability of the parties.
Gardner: Doing justice between parties involved questions of distributive justice. Uses the example of occupiers’ liability and the modern doctrine of negligence as in Donoghue v Stevenson. Both involve disproportionate allocation of resources (in reference to the ex turpi causa defence and privity rule). Distributive justice is incidental to corrective justice in tort law.
Cane: Corrective justice is structural in that it dictates a correlative system of rights and duties between the claimant and defendant. Principles of distributive justice on the other hand are a subset is the substantive part in this structure and specifies the nature of these rights and duties.
Sheinman: Doing justice in tort law entails both corrective and distributive justice. Further, the two forms are not mutually exclusive categories as espoused by Aristotle but rather corrective justice is a subset of distributive justice. A purely corrective tort system tends to lead to major distributive injustice. The tort system then needs external systems such as liability insurance to mitigate the effects of the tort system and the principle of corrective justice it rests on.
Du Bois: It is one thing to argue distributive justice plays a role in deciding how to allocate the social goods that is law and it’s institutions and it’s availability in specific circumstances. It is a whole other thing to say that distributive justice should be a criterion in pronouncing liability.
e) Argument 1: Illegality
Weinrib: Judges should not pronounce on political issues (choosing a particular distribution among several alternatives) and this is why corrective justice is the principle that identifies with tort law. This seems tautologous). This should be undertaken by a democratically elected institution. Judges operate within particular constraints and are ill-equipped to choose a particular strand of distribution criteria from many.
Finnis: The judge’s duty to apply the appropriate tort rules to a particular case is one of commutative justice but a misapplication of a legal rule is contrary to distributive justice.
Schwartz: Distributive rules are more ‘value-laden’ than non-distributive rules and require judges to pick one from a vast array.
Cane: When courts make rules regarding the circumstances in which a tort liability arises, they are making distributive rulesà they choose how the loss is spread. Weinrib’s account of corrective justice describing tort as a whole does not give enough insight to the substantive part of tort law (Kantian right do not tell us what is ‘negligent’). Judge-made rules fill this space.
Keren-Paz:
Distributive justice engagement is inevitable as judicial decision-making is political
The judiciary as an institution is less sensitive to pressure or interest groups compared to the legislature
The legislature still has the ability to amend judge-made overcomes the issue of judicial accountability.
f) Judiciary:
McFarlane v Tayside Health Board [Lord Steyn]
White v Chief Constable of South Yorkshire [Lord Hoffman]
Duty of care/proximity à cases involving public authority
g) Argument 2: Randomness
Problem: Redistribution through tort law is more random and selective that through taxationà redistribution is limited to the 2 parties in the case.
Weinrib: Tortious adjudication should not take into account loss-spreading and leave this to a social insurance of accident lossesà achieve progressive redistribution through taxation.
Perry: Localized distributive justice
Keren-Paz: Random progressive distribution in tort law is good in that it engages the elected authority to take over and create a comprehensive rule for distribution. It is also preferable to just maintaining a particular status quo. All redistributive systems are affected by randomness and require complementary structures.
h) Argument 3: Inefficiency/Excessive Cost
The pursuit of distributive goals hinders the attainment of classic goals of corrective justice due to uncertainty and lack of clear rules. The courts do not have the resources to fully analyse the consequences of taking into account distributive principles.
Kaplow & Schavell: The judiciary taking on this role leads to increased administrative costs and disincentive effectsà therefore, greater loss of wealth and this will outweigh the perceived benefit.
Keren-Paz: There will always have to be trade-offs and therefore an inherent inability to achieve complete efficiency. In this scenario, why not make the trade off distributiveà balance distributive goals and efficiency. Why an all or nothing approach?
i) Conclusion
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