Trying and Succeeding

Abstract

In “Duties to Try and Duties to Succeed,” Stephen Smith distinguishes two types of duties one might find in areas of private law such as contracts and torts: (1) duties to succeed (such as a duty not to trespass on another’s land), and (2) duties to try (such as a duty to try not to injure another through careless conduct). Smith argues that these types of duty differ not only in their structure, but in the standards of conduct they support (strict liability versus fault), the nature of the wrongdoing involved when those standards are breached (setbacks to rights or interests versus displays of disrespect), and the kind of liability they generate (damages that involve the duty-bearer doing the next best thing to heeding her duty to succeed versus damages that restore formal equality given the disrespect that is displayed by the breach of a duty to try). Finally, he concludes that, because Anglo-American private law grew haphazardly out of the writ system, it contains both types of duties yet lacks a coherent account of which duties apply or should apply to which conduct and which injuries.

Building on Smith’s highly illuminating treatment while also pushing back against his somewhat skeptical conclusion, our contribution to this volume will argue that there is a way for private law to combine aspects of duties to try and duties to succeed into what we call “qualified duties of noninjury.” In developing this claim, we re-examine Brown v. Kendall, 60 Mass. 292 (1850), a crucial decision that helped mark U.S. private law’s move away from the writ system by recognizing and defining the modern tort of negligence. Close attention to Chief Justice Shaw’s reasoning in Brown, we argue, will show that, at the center of negligence law, and indeed all of tort law, are qualified duties of noninjury, i.e., duties that have both a conduct element and an injury element.