Law's Not That Hard, 3: Lawsuits

This is the third in a series of posts laying out the basics of the operations of legal systems. I’m a believer that law is not nearly as complex as many lay people assume. A little abstraction actually makes the whole thing accessible to anyone with some facility for analytical thinking. I’m using the blog to begin sketching out a way to present the core ideas. In the first post, I explained the mechanics of making a legal argument.

In the last post, I argued that legal systems have an underlying, simple structure: Contract, Tort, Criminal Law, and a small set called Parens Patriae. The differences between these areas of the law stem solely from who makes the law and who enforces it. Privately made, privately prosecuted law is called Contracts (where individuals make the contracts that govern them and sue if they’re violated). Publicly made, privately prosecuted law is called Torts (e.g., lawsuits for injuries in accidents or violations of fair housing laws). Publicly made, publicly prosecuted law is called Criminal Law (where government attorneys will prosecute for violations of statutes, whether seeking fines for traffic violations or prison time for burglary). My academic work on this model is free for anyone to download … as many times as you wish!

This time, I’m going to get to some nuts and bolts. How do legal actions work? Every suit, no matter the area, has the same form. There are discrete, but not air-tight, steps to convincing a court that the defendant should lose — meaning, be coerced to pay money or otherwise do something he or she wishes not to do. Here they are: Duty, Breach, Causation, Damages, Defenses. Whether it’s Contract, Tort, or Criminal Law, liability is established by showing that there existed a duty, established by a law, that the defendant breached, causing harm to the plaintiff, as to which there are no relevant defenses.

If you know this legal workflow, and you understand the institutional differences between the areas of law, you’ll have an easy time learning how the steps are a little different in each area, and you’ll be able to move between areas with relative ease. That’s the power of abstraction and why it’s worth the effort. Rather than learn a large catalog of skills and procedures for accident law and a completely separate set for lease agreements, we learn the general structure for all lawsuits and how the institutional definition of an area might affect how the general principles are made into specific requirements. If we also know how to formulate legal arguments about these steps, see the first post, we’re off to the races. In this post, again just a first shot at explaining law, I will only lay out these steps. I won’t endeavor to explain, yet, how to make each particular to its area.


The very first question we must address is what the duty, if any, of the defendant was. Duties are what we might casually think of as “the law,” the things you must do or not do. Duties can be created in statutes by legislatures or administrative bodies (think speed limits and nearly all criminal laws), by courts refining the “common law,” or by private individuals in contracts. Each institution will have different rules governing how it can make duties and what kinds of duties it is permitted to create.

For contracts, we examine whether the group of private entities that will be bound by the terms of the contract consented — usually by looking to see whether someone made an offer of terms that the others accepted. If so, the contract operates very much like a statute, specifying that one of the parties is under a duty, say, to deliver a car and that the other is under a duty to remit payment. There really isn’t much difference between this kind of duty, to deliver a car under a contract, and a duty to obey a speed limit under a public statute or regulation. Both are “laws” that courts will back up with coercion, though possibly using different remedies.

Courts explicitly create duties in certain areas not governed by legislation and do so by deciding cases. Historically, Tort, private lawsuits to recover for violations of publicly made law, has been composed primarily of judge-made duties. Suits for injuries sustained in various types of accidents, for example, are the bulk of what first-year students study in tort classes, and these are often governed by the body of prior cases courts have decided. Today, numerous legislatively enacted statutes also provide for and govern private lawsuits. For example, the Civil Rights Act, among other things, creates duties on public accommodations owners and employers not to discriminate against customers and employees on account of race, and it gives private individuals rights to sue if these duties are violated.

(Also note, and I may return to this trans-substantive idea in later posts, that many duties prohibit conduct only if accompanied by a particular mental state, or mens rea in the dead language lawyers sometimes use. So, I’ve only violated the duty contained in a certain murder statute if I purposefully or knowingly kill another human being.)

No matter the source, the question is what conduct the law requires or prohibits. That is duty.


Just because the law imposed a duty on the defendant does not mean the defendant violated the law by breaching that duty. The question, here, is whether the facts show that defendant did something or failed to do something the law required. So if the law imposed on me an obligation when driving to operate my car with the care of an ordinary, competent driver under all the circumstances, whether I breached the duty would turn on an analysis of the facts and an interpretation of the duty. Perhaps the court will compare my facts with those in other driving cases to see whether courts have further specified what kinds of driving fall short of the general duty of care.

Same thing under Contract and Criminal Law. Regardless of the source, we look at the duty the law imposes and then at the facts of our case to see whether that duty was breached — by not performing a contract or by committing a crime, for example.

As a matter of practice, the act of comparing a contractual, statutory or judge-made duty with the facts will sometimes lead to a refining of the duty. The case in front of you may not clearly fall on one side of the violation/no-violation line, forcing you to look more carefully at what the duty is and perhaps sending you back to step one to restate, refine, or amend the duty. This can involve “making new law” either through interpretation — deciding what a written formulation of a duty “really” means — or through judicial amendment.

Consider this example. Maybe some other states have decided, on similar facts to the ones in your case, that the duty of accountants to perform analyses like “reasonably prudent accountants” would, a judge-made tort duty, does not extend to plaintiffs who lack a contractual relationship with the accountant. Still other states have allowed people that the accountant should have foreseen would rely on his or her work to sue. This is a question of duty, and we’re forced to consider more carefully the ambit of the duty (violation only if you also have a contract with the accountant or any foreseeable reliers — or something else?) as we apply the facts to see if there is a breach.

Another example: In a contract for the sale of goods, suppose I receive the goods but pay you less than you think you are owed. The contract contemplated payment but failed to include an explicit price term. Did I violate (breach) a duty established by the contract? We need to go back to the first step and figure out what, specifically, I was obligated to pay. Under the law of most states, I’d be on the hook for a reasonable price at the time of delivery. Whether I breached that implicit obligation depends on what that duty is. So we’ll litigate it, offering evidence of what was reasonable to establish what our private law required me to pay.


Even if I “break the law,” I’m often not liable unless my actions caused a result specified by the law. This is sometimes tricky, because in the law we often use the concept of causation to serve both logical and policy ends. Logically, causation is straightforward to understand, if not always to apply. If I’m under a duty to operate a car non-negligently and I breach that duty, I’m only responsible to someone injured in a crash if I caused his or her injuries. At the very least, my breaching the duty the law established must be a but-for cause of the injury. That is, but for my breach, the injury would not have occurred.

Sometimes this is called “actual causation” or “cause in fact,” instead of “but-for causation.” The problem is that it’s greedy, in computer-nerd speak — it sweeps in lots of conduct that we probably don’t think of as causal. So, if I injure someone in an auto accident, and but for my negligence the person would not have been injured, it’s also the case that my parents are a “but-for” cause of the injuries. After all, no parents, no me. No me, no breach by me.

The law’s solution to this is to require something more than but-for causation. We will insist that the defendant’s conduct was a proximate cause or substantial factor in producing the injury. The language and exact analysis vary, but the idea is to restrict liability to violations that are connected in a fairly direct way to the injury. This is a matter of policy rather than logic.

In both tort and contract law, the ability of the breaching part reasonably to foresee the injury is the key. They differ, though, in the kind and timing of the thing foreseen. Traditionally in tort, if you should have foreseen, at the time of the breach, damage of the kind that occurred, you will be liable for the damages caused even if you couldn’t foresee their magnitude. In contract law, the famous case of Hadley v. Baxendale decided that a defendant who breached a contract to deliver a crankshaft was not responsible for lost profits that were not foreseen (contemplated) at the time of the contract and were not otherwise a “natural consequence” of the breach.

The important thing to note for the moment is that, whatever the limits, they are policy determinations, allocating responsibility for avoiding losses in ways thought best to serve the public interest. Because it’s a policy issue, the extent to which we permit plaintiffs to travel down the but-for path could also be understood as a definition of the scope of the duty the law has created. Consider, for example, the accountant’s liability to third parties. One could characterize the question as going to whether the accountant was a “direct enough” cause of their injuries or to whether we desire, as a matter of policy, to create a duty on an accountant enforceable by foreseeable reliers not in contract with him or her. The practical consequence of this distinction, between duty and proximate cause is that the definition of the duty is in the hands of the judge for such torts. But the question of causation is given to the jury. These distinct ways of seeing the same problem were the subject of the famous torts case, Palsgraf v. Long Island Railroad Co..

Also note that causation can sometimes be difficult to prove. Summers v. Tice is a tort case in which the plaintiff was shot in the face by at least one of two negligent hunters, Dick Cheney-style, but where it was unclear which shooter caused which injury. The court shifted the burden from the plaintiff to each hunter to prove that he was not the cause, lest the plaintiff be stuck unable to prove to a greater than 50% probability that a particular one of them had caused his injury.

Damages and Defenses

This entry has already gone on a bit too long. I’m aiming ultimately for a thin volume, after all. But the final elements of a lawsuit are showing that there were damages, calculating them, and also examining any defenses the law may provide. Your intuition will get you a long way here. But there are some subtleties, and so the nature of remedies will get its own post.

Defenses are generally policy-based limitations on a positively stated duty. They, like other aspects of the lawsuit, could easily be collapsed into the definition of the duty. For example, while it might generally be a violation of a publicly created duty to go onto another’s land without permission, I will not be liable for doing if my entry was to save a life. This is the defense of necessity. One could as easily say that a trespass is defined so as not to included necessary entries.


Obviously, there is much more one could talk about. My goal here is not to convey the information necessary actually to litigate a case or pass the bar. Rather, I want to provide the framework that will permit a reader to develop intuitions about what the law probably is and what it should be. Key to this is understanding legal argument, understanding the general atlas of the law, and understanding how law violations are proved. We now have at least have a sketch of these.