TY - JOUR

T1 - Hybrid Torts and Contemporary Tort Theory

AU - Murphy, John Roger

PY - 2018/9/30

Y1 - 2018/9/30

N2 - This article examines the problem of fit caused by ‘hybrid torts’ for several contemporary, explanatory theories of tort law: those belonging to Ernest Weinrib, Robert Stevens, and John Goldberg and Benjamin Zipursky. The term hybrid tort is intended to capture a cause of action that is treated routinely by practitioners, judges and doctrinal jurists alike as a tort proper (even though its ingredients suggest that it is only part-tort and part something-else (like, for example, equity)). The central argument of the article is as follows. At tort law’s borders with other legal categories, there exists a range of hybrid actions that are widely acknowledged to be torts but which comprise a range of juridical components some of which are typical within tort law, and some of which are typical of some other legal category. This set of hybrid actions suggests that – whatever theoretical neatness might dictate – tort law’s boundaries are fuzzy and porous, not clearly defined and rigid. This fuzziness in the object of theorisation naturally casts doubt on the apple-pie neatness of the theories in view. In addition, the obvious response – that these juridically mixed causes of action are not proper torts (and therefore do not require explanation) – is shown to be unavailable the theorists whose work is examined given that each of them commits to explaining the law as it presents itself. Put differently: since the law as it presents itself clearly treats these hybrid actions as torts, they cannot be dismissed in this way. Nor, it is argued – for a combination of reasons that establish their practical significance – can these hybrid torts be dismissed as irrelevant.

AB - This article examines the problem of fit caused by ‘hybrid torts’ for several contemporary, explanatory theories of tort law: those belonging to Ernest Weinrib, Robert Stevens, and John Goldberg and Benjamin Zipursky. The term hybrid tort is intended to capture a cause of action that is treated routinely by practitioners, judges and doctrinal jurists alike as a tort proper (even though its ingredients suggest that it is only part-tort and part something-else (like, for example, equity)). The central argument of the article is as follows. At tort law’s borders with other legal categories, there exists a range of hybrid actions that are widely acknowledged to be torts but which comprise a range of juridical components some of which are typical within tort law, and some of which are typical of some other legal category. This set of hybrid actions suggests that – whatever theoretical neatness might dictate – tort law’s boundaries are fuzzy and porous, not clearly defined and rigid. This fuzziness in the object of theorisation naturally casts doubt on the apple-pie neatness of the theories in view. In addition, the obvious response – that these juridically mixed causes of action are not proper torts (and therefore do not require explanation) – is shown to be unavailable the theorists whose work is examined given that each of them commits to explaining the law as it presents itself. Put differently: since the law as it presents itself clearly treats these hybrid actions as torts, they cannot be dismissed in this way. Nor, it is argued – for a combination of reasons that establish their practical significance – can these hybrid torts be dismissed as irrelevant.

M3 - Journal article

VL - 64

SP - 1

EP - 42

JO - McGill Law Journal

JF - McGill Law Journal

SN - 0024-9041

IS - 1

ER -