Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 1. Introduction
in the same position as when they begin their dispute: however they slice it, they
will still have the entire pie to share. It is only by bringing lawyers into the mix and
by subjecting themselves to the inevitable costs of litigation that the parties consign
themselves to being worse off. Once lawyers and courts and filing fees and
witnesses and depositions and all the rest are brought into the picture, the pie starts
getting smaller and smaller. Because this is perfectly obvious, and perfectly
obvious to all rational disputants right from the get go, the penchant of our casebook
warriors to litigate requires some explanation.
Samuel Issacharoff, The Content of Our Casebooks: Why do Cases Get Litigated?, 29 FLA. ST. U.
L. REV. 1265, 1265-66 (2001).
Are parties who choose litigation over settlement irrational actors, as the passage by
Professor Issacharoff suggests? Are these disputants short-sighted fools? Or are they principled
zealots? What about their lawyers? How about the Vosburgs and Putneys or Ms. Garratt and
young Brian Dailey?
10. Empathy and the case method. What is the effect of learning tort law through the case
method? How does approaching torts through the lens of individual stories alter our thinking
about overarching principles?
Many students—and presumably many jurors—cannot help but feel moved when they
read cases about heinous injuries and destroyed livelihoods. Yet the psychologist Paul Bloom
argues that empathy is a poor guide for making law or setting policy. Empathy can lead us to
neglect the systemic perspective in favor of attending to a particular suffering person. PAUL
BLOOM, AGAINST EMPATHY 9 (2016). Approaching tort law through individual cases may
marginalize the interests of diffuse, non-present stakeholders who are unrepresented—the
unnamed masses who will be affected by the liability rule going forward.
Psychologists have identified several features of empathy that make it vulnerable to
manipulation. First, our affective reactions are roused by vivid, concrete examples, not by
abstract, hypothetical, or distant concepts. As the Nobel laureate Thomas Schelling observed in
1968: “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will
prolong her life until Christmas, and the post office will be swamped with nickels and dimes to
save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will
deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a
tear or reach for their checkbook.” Thomas C. Schelling, The Life You Save May Be Your Own, in
PROBLEMS IN PUBLIC EXPENDITURE ANALYSIS: STUDIES OF GOVERNMENT FINANCE (Samuel B.
Chase ed., 1968). The same dynamic may arise when there is a six-year-old brown-haired girl
who has been injured and to whom the tort system can give resources, on the one hand, and a
systemic social policy question about the optimal liability rule, on the other hand.
A second feature of empathy is that it does not scale. We feel impelled to come to the aid
of a single needy person, but we experience diminished motivation in response to large numbers
of victims, a phenomenon known as “psychic numbing.” Paul Slovic, “If I Look at the Mass I
Will Never Act”: Psychic Numbing and Genocide, 2 JUDGMENT & DECISION-MAKING 79 (2007).
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