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About Peter M. Gerhart

I am relatively new to torts scholarship, although I am not new to legal scholarship in general. My project is to explore a theory of responsibility that underlies tort law and that unites, to the extent possible, deontic and consequentialist approaches to torts scholarship. This has resulted in a series of articles with several distinguishing characteristics.
I espouse justificational analysis -- that is, an examination of the social problem that the law is addressing, the values that are in conflict in a case, and the factors that good analysts take into account in determing how those values are assessed and balanced in particular cases. I do not start with the reasoning given by the court, for the reasoning is often superficial, conclusory, or unrevealing. Nor do I start with the rule stated by, or fairly inferred from, the outcome of the cases, for the legal rule is often based on factors that, upon analysis, turn out not to be relevant. I honor the outcomes of cases (that is, who won) but not the conventional basis on which that outcome was reached. I start instead with the problem that the court is addressing – that is, the social problem that gave rise to the dispute – and try to figure out what intuition the court must have been following to reach the outcome that it did.
In other words, I eschew traditional legal reasoning and its reliance on what courts tell us they are doing. This has meant that I see tort doctrine in ways that differ from present understanding; for example, I view proximate cause to be about establishing responsibility to others, not about cutting off responsibility, making it a part of the doctrine of breach. Here are some of the claims that I make about tort doctrine:
1. That strict liability ought not be a separate category of responsibility, and that it ought to be recognized as a species of reasonableness responsibility;
2. That products liability ought not to be recognized as a separate category of torts. The relevant category is seller responsibility, which should encompass both sellers of services and sellers of products;
3. That the main line of proximate cause cases ought to be understood not as a limitation on responsibility but as basis for determining when a person is responsible for harm to others and therefore as a species of whether a breach has occurred
4. That duty ought to be understood as relating to the actor’s relationship to the risk, and ought to be organized around the actor’s dominion over the risk and control over the risk.


Present Faculty Member, Case Western Reserve University



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