• All of private law and criminal law reduce to two basic models of human interaction.

• Criminal law reduces to two basic models of human interaction.

  • One model is illustrated by the plaintiff sitting in his living room when an airplane crashes into his house, causing injury to him and damage to the house. Call this the model of aggression.

• The alternative is typified by the automobile accident, two cars collide on the highway. Neither is the apparent aggressor. They are interacting parties.

• When both parties contribute to the accident, how do you decide which should pay for it?

• Part of the law is based on the model of aggression and part on the model of interaction.

  • Direct causation is part of the idea of aggression.

    • If the causation is indirect, then the model of interaction becomes relevant.

  • Criminal law is about aggression.

  • Criminologists might investigate the behavior of victims as factors generating crime, but the approach of the law, quite rightly, is to treat the criminal as the aggressor solely responsible for the harm.

    • The same is true about intentional torts—battery, assault, violations of privacy, and the like. Strict liability in tort is based on the same image of aggression against a passive victim

• “It takes two to tort”; If the victim’s nose is in the way of the defendant’s fist, then both contribute to the punch in the nose.

• In the history of tort law, the model of interaction gradually triumphed over the paradigm of aggression.

  • In other words, the principle of negligence implicit in trespass on the case triumphed over the model of aggression implicit in the writ of trespass.

Brown v. Kendall and Contributory Negligence

• The turning point in American law was a modest little dispute in 1850 in Massachusetts about using a stick to break up a dogfight.

  • The defendant swung the stick back and hit the plaintiff in the eye.

  • The plaintiff sought to recover in trespass, but the defendant wanted to assert the relevance of the plaintiff ’s negligence and thus prevailed in his argument that the proper standard was not strict liability based on aggression but negligence or the failure to exercise due care in swinging the stick.

• When we reason in the model of interaction, the negligence of both defendant and plaintiff becomes relevant.

  • The relevance of the plaintiff’s negligence is not mentioned in the 1804 Code civil.

  • The common law recognized it in 1809.

• The great debate that emerged was whether the proper standard should be an all-or-nothing or relative standard.

• The former principle holds that if the plaintiff is contributorily negligent, she is the final cause of the accident (an aggressor against herself, as it were), and therefore there should be no recovery.

• The relative standard, comparative negligence, starts on the assumption that both negligent parties contributed to the accident and that the damages should be judged accordingly.

• The conflict between these two approaches came to a head when the California Supreme Court turned to the interpretation of a provision in the 1872 California Civil Code, which reads as follows: § 1714 Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.