These brief remarks focus on the concepts of intent and recklessness in tort and how a Restatement should approach them. They center on three jurisprudential issues that are raised in any discussion of the basic building block concepts of a body of law, namely, the role of interpretive construction in the application of such concepts, the value of systemic consistency between such concepts and similar ones in other bodies of law, and, finally, the need to determine which concepts are criterial and which are merely evidential. They reflect my commentaries as a member of the panel on intent at the John W. Wade Conference on the Restatement (Third) of Torts: General Principles. The charge of the panel, which included George Fletcher and Anthony Sebok, was to reflect critically on the draft of an essay by Professors Henderson and Twerski entitled Intent and Recklessness in Tort: The Practical Craft of Restating Law. Their thoughtful essay made a host of theoretical and practical claims, two of which I dispute below. I conclude with a comment on the proper conceptualization of recklessness.
Henderson and Twerski argue that proper conceptualization of the intent requirement requires recognition of a distinction be- tween "the proximate consequences of discrete acts, on the one hand, and the inevitable consequences of general courses of conduct, on the other."' They contend that the concept of "intended consequences" should not be applied to a course of repetitious conduct-such as batting in the lineup on a major league baseball club throughout a long season-undertaken by an actor, because over the course of such conduct "some types of unhappy consequences are, sooner or later, virtually certain to occur."
Jody David Armour,
Interpretive Construction, Systemic Consistency, and Criterial Norms in Tort Law,
54 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/16