Lecture 2: “Tort law’s Cooperation Principle and Commercial Arrangements”
The Clarendon Law Lecture Series
"THOUGHTS ON TORTS"
Professor Jane Stapleton DCL - Master of Christ’s College Cambridge, an Emeritus Fellow of Balliol College and an Emeritus Distinguished Professor of the Australian National University (ANU).
Series Abstract:
Periodically academia is swept with enthusiasm for a grand theory which describes tort law as being fundamentally “all about one thing”, like carrot purée. This series of lectures explores a different type of scholarship, one that places at centre stage what judges do and say, and how they understand their role. Such scholarship is capable of both smoothly absorbing legal change signalled by courts and influencing courts with its insights, so it is convenient to describe it as “reflexive tort scholarship”.
Lecture 1 looks generally at this technique while the following lectures present detailed examples of where it can lead. It is because of its tight focus on judicial reasoning that reflexive tort scholarship is so well placed to assist judges, and indeed to collaborate with them in the process of the common law’s development. The theme of this series of lectures is that this is at least as thrilling a prospect for a young legal scholar as any offered by grand tort theories.
Lecture 2: “Tort law’s Cooperation Principle and Commercial Arrangements”
In Lecture 2 reflexive scholarship is used to excavate an inchoate principle of wide significance in tort law. It will argue that a tort-law principle of cooperation plays a vital role in supporting commercial arrangements.
Because they are developed by a single set of judicial institutions, it is to be expected and hoped that the various areas of the common law of obligations will reflect a high level of coherence. It is well accepted that contract law seeks to support cooperative human arrangements. Less well appreciated, especially by commercial lawyers, is that inherent in tort law there is a parallel principle of support for cooperative human arrangements, which is conveniently labelled “tort’s cooperation principle”. Identification of this tort principle and its associated concerns is important: for the coherence of private law in general; for understanding the entitlements, inter se, of non-privy participants in commercial arrangements in particular; and for highlighting a long-standing discontinuity in doctrinal outcomes. It is only by taking seriously what judges say and decide that the principle of cooperation can be clearly identified and understood.
About Jane
Jane Stapleton DCL is Master of Christ’s College Cambridge, an Emeritus Fellow of Balliol College and an Emeritus Professor of the Australian National University (ANU). Originally trained as a scientist, she resigned a postdoctoral post in Cambridge to retrain as a lawyer, first at the ANU then at Oxford where she taught for many years. She subsequently held posts at the University of Texas and the ANU.
Professor Stapleton is a Corresponding Fellow of the British Academy, an Honorary Bencher of Gray's Inn, a Council Member of the American Law Institute, an Honorary Fellow of St John’s College Cambridge and a Fellow of the Australian Academy of Law. She is a recipient of: the Association of American Law Schools’ Prosser Award which honours those "who have made an outstanding contribution to the world of tort law scholarship”; and the American Bar Association’s Robert B. McKay Law Professor Award which honours “attorneys who have shown commitment to the advancement of justice, scholarship and the legal profession, demonstrated by outstanding contributions to the fields of tort and insurance law”.