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Professor Michael D. Green delivers Second Fleming Lecture at Berkeley Law

Professor Michael D. Green, 2012 winner of the John G. Fleming Memorial Prize for Torts Scholarship, delivered the Second Fleming Lecture at Berkeley Law with co-winner William Powers, Jr. of the University of Texas on Monday, Nov. 5. Upon acceptance of the prize, both men presented a lecture entitled “Restating Torts”, largely centered around their outstanding co-report on two core portions of the new Restatement (Third) of Torts, “Restatement Third, Torts: Liability for Physical and Emotional Harm“, for which, among other accomplishments, they were being honored.

Tort law, Green’s area of specialty, is a body of rights, obligations, and remedies applied by courts in civil proceedings in which an individual is claiming to have suffered harm as a result of the wrongful acts of another person. In Green’s lecture, one of the main points of focus was addressing some of the issues and ambiguity present in Tort Law. For example, early in his speech, Green spoke on the potentially misleading nature of the term “legal cause.”

“Somehow, legal cause implies there is something special about causation and law. That’s wrong, or we believe it is wrong,” he said. “Cause is cause. To be sure, the outcomes of interest that we examine may vary. In tort law we are interested in individuals and their harm. Did some agent cause this individual’s harm? We thought the term legal cause needed to be discarded.”

Green went on to discuss the pressing issue of if a defendant’s force of conduct affected the injuries sustained by the plaintiff, and how that factors in to an individual case’s outcome. In other words, factual causation. Once again, Green criticized a term that is widely used– “substantial factor”– to state the requisite causal relationship.

“A serious problem is there is no analytic or mental process that we can go through to say that this [the defendant's conduct] is a substantial factor in the outcome,” Green said. “’Harm would not have occurred absent the conduct’ means that I should take a DVD of the events leading to an accident, rewind it, take out the tortious conduct– remove it– and then replay and see: does the plaintiff end up with the same injury previously? If he or she did, then we do not have factual causation  And that’s a mental process I can apply.”

In one memorable moment, Green illuminated another issues, ambiguity over the term “proximate cause” in Tort Law, through the classic fall of man allegory.

“Surely Eve was negligent, per se, in tasting the forbidden fruit, and surely that was the cause of what has happened to human kind since,” Green explained. “But I can’t imagine holding Eve responsible for everything that happened since… That is the whole point of limiting liability: proximate cause. Another misleading term.”

Green continued on, explaining the conclusion he and Powers came to over proximate cause in their restatement work.

“It is an unfortunate and confusing term that we were finally persuaded to do away with,” he said. “And now we separate factual cause and suggest limits on liability are separate and not together with proximate cause, and not scope of liability.”

The Fleming Prize is named for John Fleming, a professor of law at the University of California, Berkeley, and a respected tort expert. When he passed in 1998, two books were published in his honor. Proceeds from their publishing were used to create the Fleming Prize, which today is awarded every other year to a torts scholar from any country. Last year, the Fleming family endowed the Fleming lecture, to be held bi-annually at Berkeley.

Both Green and Powers lived up to their most recent accolade, and delivered an eye-opening lecture on their lengthy investigation of the intricacies of Tort Law. The seventh ever winners of the Fleming Prize, both men remain honored members of the law community, and revered experts on Tort Law.