Where we’ve been Tort as public law invoked by private players Law made by judges corrected & supplemented by legislatures bounded by Constitution applied by juries Uneven doctrinal development

substantive areas intentional torts what’s intent, anyway? use (and uselessness) of Restatement definitions to be filled in (judge? jury?) “harmful or offensive contact” subjective/objective distinction “any unlawful restraint of an individual’s personal liberty of freedom of locomotion” boundaries of personal choice & compulsion “one who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress” floodgates worry

substantive areas negligence duty/breach/cause/proximate cause/harm “knew or should have known” “foreseeable & unreasonable risk of harm” B<PL what does everyone else do? what does the law say? issues of proof don’t forget defenses

substantive areas negligence duty/breach/cause/proximate cause/harm doctrinal function action vs. inaction if inaction, look for special relationship, reliance, undertaking to help, etc. “third parties” “Courts will find a duty where, in general, reasonable people would recognize it and agree that it exists.” gatekeeper function “do we want to impose liability here?” negligently caused emotional harm; economic harm desire not to intrude into family relationship, doctor/patient relationship