This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light on the culpability of the criminal defendant. Tort law employs this classic one-party analysis when it determines whether the intent element is satisfied for any of the intentional torts, and when it examines whether or not the defendant in a negligence action has breached the duty of care.
As useful as it is in some critical areas of tort law, unilateral analysis fails to generate doctrine that handles properly other important tort law issues. One such area is the privilege of consent. Another is the privilege of self-defense. Both of these tort law problems require for their satisfactory resolution the deployment of classic bilateral, or two-party, analysis of the sort that is traditionally associated with contract law.
After fully exploring the necessary blending of unilateral and bilateral analysis, the article goes on to identify a second kind of bilateral analysis that is present in tort law. This type of two-party analysis must deal with situations in which the normally harmonious goals of compensation and deterrence come into conflict. The nature of this problem and its resolution is illustrated across a number of recurring factual situations in torts, including the problem of subjective consent in the absence of objective consent and the problem of reasonable self-defense in response to an innocently generated threat.
In the final section of the article, the conflict between compensation and deterrence is shown to shape a bilateral analysis that does not always withhold liability but that instead sometimes results in liability being imposed on a defendant who has not acted in an undesirable, antisocial manner. This element of strict liability is shown to exist within the very heart of what is thought to be traditional, fault-based intentional tort law.
Marin Roger Scordato, Innocent Threats, Concealed Consent and the Necessary Presence of Strict Liability in Traditional Fault-Based Tort Law, 37 PEPP. L. REV. 205 (2010).