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A Tale of Two Ironies: In Defense of Tort
Pacific McGeorge Global Business & Development Law Journal (2012)
  • David F. Partlett, Emory University School of Law
  • William W. Gill, Lincoln Memorial University - Duncan School of Law
Charles Dickens likely never imagined that he would be quoted so often in legal discourse.' Yet it is not surprising that he resonates in the world of legal theory, rich as his work is with ironies that operate on personal as well as political levels. Take, for example, A TALE OF TWO CITIES, in which a revolution fought in the name of liberty turns to tyranny, and stable, tradition-bound Burkean ideals provide the means to freedom for those terrorized in the name of liberty.2 The seeds of such ironies have also taken root in the law of our two "cities," the United States and the rest of the common law world; therein we find a study in contrast regarding the question of how to deal with the inherently contentious relationship between free speech rights and the rights traditionally protected by tort law, many of which pertain to speech-based harm. We argue that the overwhelming dominance of constitutional free speech doctrine over common law tort principles that has taken hold in the United States has resulted in significant inconsistencies that are unlikely to crop up in legal systems that have opted to deal with the same conflict from within the common law. 
Part II of this Article outlines the constitutional solution that has emerged as prevalent in the United States, paying particular attention to the manner in which the American approach represents an expression of societal values through law. In Part III, we review the Supreme Court's most recent prominent decision in this area, Snyder v. Phelps,3 and we challenge the judicial critique of tort law as impermissibly vague and unpredictable. Particularly ironic and problematic, we argue, is the fact that this critique occurs within a constitutional analytical framework that is itself marked by imprecision-a phenomenon exemplified by the majority opinion in Snyder. In Part IV, we argue that the United States' First Amendment jurisprudence-ostensibly grounded in important part in protecting values such as self-determination and freedom from oppression-has resulted in the sacrifice of common law tort principles rooted in comparable, if not identical, values. At the heart of this second irony is the fact that the protection of civil liberties through tort law has traditionally been entrusted in great part to courts and juries, whereas the constitutional approach is characterized by mistrust of these institutions. Moreover, the common law should be accorded a privilegedeven a constitutionally protected-place in the scheme of recognized rights, and it ought not to be conflated with other types of government action.4 In Part V, we analyze the extent to which the approaches taken by other nations' courts guard against the problems identified in Parts III and IV.
  • First Amendment,
  • Free Speech,
  • Torts
Publication Date
Citation Information
David F. Partlett and William W. Gill. "A Tale of Two Ironies: In Defense of Tort" Pacific McGeorge Global Business & Development Law Journal Vol. 25 Iss. 1 (2012) p. 343 - 359
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