Abstract
I. AN ANCIENT FICTION IN MODERN TIMES
A. Continued Vitality of an Old Doctrine
Transferred intent is an ancient common-law fiction that continues to be recognized as an active part of American tort law. The transferred-intent doctrine is described in casebooks' and treatises, tested on bar examinations, asserted by attorneys on behalf of clients, discussed and applied by courts, and is even acknowledged by the American Law Institute. However, there has been virtually no critical examination of whether the transferred intent fiction still serves a useful purpose in contemporary tort law.
This is surprising, for few features of the tort system have escaped scrutiny in recent years. In wave after wave of "tort reform," interested parties have done battle in legislatures, courts, and law journals over the availability and terms of compensation for injuries. Transferred intent is a part, albeit a very small part, of the turf that has been repeatedly contested. To have survived these battles wholly unscathed is remarkable.