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Abstract:
Many theorists claim that justice is a question-begging concept that has no inherent substantive content. They point to disagreements among justice theorists themselves about basic aspects of the justice theory, such as the nature of corrective justice and the distinction between it and distributive justice, as even further reason to dismiss the concept of justice or to fill it with their preferred theoretical content. Yet most persons perceive that the concept of justice is not an empty shell. Since ancient times it has been thought to encompass not merely a formal equality (treating like cases alike), but also a substantive equality grounded in the equal dignity of each human being which requires giving each person his or her "due" - what is his or hers as a matter of right - a requirement that is usually understood to be in direct conflict with the basic principles of aggregate social welfare theories such as utilitarianism or its modern variant, economic efficiency.

The elaboration of this substantive equality and its implications for morality, justice, and law form the core of the natural-law or natural-right theories of law. In this article I build upon a summary and critique of John Finnis's natural law theory (1) to delineate the basic assumptions and principles of the natural law theory regarding the foundations of and relationships among morality, justice, and law; (2) to demonstrate the agreement of major natural law theorists, from Aristotle through Aquinas and Kant to Finnis, on these basic assumptions and principles; (3) to distinguish these basic assumptions and principles from those of the competing theories of utilitarianism and economic efficiency; and (4) to clarify the nature of and distinctions between the two basic divisions of substantive justice: distributive justice and interactive justice.

I use the term "interactive justice" instead of the usual term, "corrective justice," since the former term is much more informative and precise in conveying the distinct nature and domain of this type of justice, whereas the latter term almost always misleads people into one or both of two related misconceptions: (1) that "corrective" justice is concerned solely with the correction of wrongful injuries and has nothing to say about the nature of the underlying wrongs or the prevention of their occurrence, and (2) that it is merely a remedial corollary of distributive justice which corrects deviations from the distributively just distribution.

Distributive justice and interactive justice separately address the two fundamental problems of human existence, and they employ quite different criteria of equality to resolve those problems. Together, they seek to assure the attainment of the common good (the full realization, to the extent practicable, of each person's humanity) by providing each person with her fair share of the social stock of instrumental goods (positive freedom via distributive justice) and by securing her person and her existing stock of instrumental goods from interactions with others that are inconsistent with her status as a rational being with equal, absolute moral worth (negative freedom via interactive justice).

Abstract:
There is a striking incongruence between the discussions of negligence in the legal literature, including the American Law Institute's Restatement of Torts, and the understandings of ordinary people and the actual practice of the courts. The legal literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This test was invented by legal academics and inserted in the first Restatement during the first part of the twentieth century, although, as recent studies all conclude, it had almost no support in the cases prior to its adoption in the Restatement and for several decades thereafter. It is less well recognized that the test continues to be infrequently mentioned by the courts, is rarely actually employed, and almost never explains the results. Instead, the courts apply varying standards of reasonable care, based on the principles of justice, that take into account the rights and relationships among the parties.

The most famous judicial exposition of the aggregate-risk-utility test is the "Hand formula," which was set forth by federal Second Circuit Judge Learned Hand in a series of opinions that commenced in 1938, four years after the test's adoption in the first Restatement. Hand was an active participant in the drafting of the first Restatement, and these opinions seem to have been an attempt to stimulate courts' use of the aggregate-risk-utility test. However, the test continued to be rarely mentioned by the courts, even by other judges in the Second Circuit. During the five decades (1909-1961) that Hand served as a federal judge, he mentioned the test in only eleven opinions, between 1938 and 1949, and in none of these opinions did he actually apply the test to resolve the negligence issue. In his last reference to the test, in 1949, he essentially abandoned it.

A series of publications by Richard Posner, initiated when he was a law professor, brought renewed attention to the Hand formula, which Posner claims expresses an economic efficiency interpretation of negligence that has long been implicit in judicial opinions. However, Posner's arguments are composed of speculative and implausible assumptions, overbroad generalizations, and superficial descriptions of and quotations from cases that misstate or ignore facts, language, rationales, and holdings that are inconsistent with his argument. None of the cases discussed by Posner support his thesis. Instead, the reasoning and results in these cases employ varying standards of care, depending on the rights and relationships among the parties, that are inconsistent with the aggregate-risk-utility test but consistent with the principles of justice.

Since becoming a federal judge, Posner has attempted to apply the Hand formula in his opinions. Frank Easterbrook, a like-minded former professor who joined Posner on the Seventh Circuit, has also endorsed the Hand formula. However, neither of them has been able to employ the Hand formula to resolve the negligence issue in any case, and none of their fellow circuit judges has attempted to do so.

negligence, reasonableness, reasonable care, standard of care, Hand formula, risk-utility, efficiency, justice, Restatement of Torts, Learned Hand, Richard Posner, Frank Easterbrook

Abstract:
The article briefly discusses the impossibility of a strict formalist or positivist approach to legal adjudication and the necessity and plausibility of a principled approach, according to which it is necessary to resort, explicitly or implicitly, to the principles underlying the positive expressions or sources of law to identify, interpret and apply the law, in easy as well as hard cases. The legitimacy of the principled approach crucially depends on resort to the community's moral principles as embedded in the existing law -- those moral principles which best explain as much as possible of the existing law -- rather than allowing, as Ronald Dworkin has argued, judges to adopt whichever moral principles they subjectively deem best that satisfy some minimum threshhold of descriptive fit.

Do such moral principles exist, embedded in the law? Many legal skeptics argue that they do not. The two principal competing moral theories of law are the justice theory, based on the foundational norm of maximizing everyone's equal individual freedom, and the utilitarian efficiency theory, based on the foundational norm of maximizing the total aggregate pleasure, happiness or wealth of the society as a whole. After briefly describing each theory and its implications for legal obligation, a brief survey is undertaken of several major tort doctrines or issues: plaintiff's consent as a complete defense, plaintiff's contributory negligence as a complete or partial defense, the distinction between intentional torts and the tort of negligence, the distinction between tort law and criminal law, and the availability of punitive damages in tort law.

The justice theory explains and justifies each of these doctrines and distinctions, while the utilitarian efficiency theory is not able to explain or justify any of them. Similar findings were made for the major elements of negligence law in a prior essay, "The Standards of Care in Negligence Law", which was published in Philosophical Foundations of Tort Law, OUP 1995).

Abstract:
The academic literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This aggregate-risk-utility test is a transparent implementation of the basic impartiality and aggregation principles of utilitarianism and the most popular (Kaldor-Hicks) interpretation of economic efficiency. Thus, the test's assumed prevalence as the criterion of reasonableness in negligence law has been highlighted by legal economists as confirmation of the utilitarian efficiency foundations of tort law, while those, including Ronald Dworkin, who think that the law, including tort law, is or should be grounded on principles of justice have sought to demonstrate that, contrary to appearances, the aggregate-risk-utility test is consistent with and best explained and justified by the principles of justice.

As this article discusses, the attempts to explain and justify the aggregate-risk-utility test as an elaboration of the principles of justice have all failed. The leading justice theorists all now acknowledge, indeed insist, that the aggregate-risk-utility test cannot be reconciled with the principles of justice. The attempts to affect such a reconciliation were and are based on a fundamental error: treating the basic principles of utilitarianism, which are in direct conflict with the equal-freedom norm that underlies the principles of justice, as principles of justice.

These attempts were motivated by a misunderstanding of actual negligence law. As is discussed in related articles (also available on SSRN), the aggregate-risk-utility test, although pervasive in the secondary literature and mentioned by a small minority of courts, is almost never used by the courts to decide whether particular conduct was negligent. Instead, the courts employ, explicitly or implicitly, a number of different criteria, depending on the rights and relationships among the parties, that are based on the principles of justice.

Why, then, is the aggregate-risk-utility test pervasive in the secondary literature? The secondary literature is primarily the province of legal academics. The aggregate-risk-utility test of negligence was invented by legal academics and inserted in the first Restatement during the first part of the twentieth century, when utilitarianism was a popular moral and political theory, and its adoption in the Restatement assured its prominence in the secondary literature, although it continued to be infrequently mentioned and almost never used by the courts.

Although it is now rarely noted, the risk-utility test in the first and second Restatements was significantly qualified. For example, it emphasized socially valuable rather than purely private benefits, and its drafters seemed to view it as a prohibitive-cost test, which requires risks to be reduced to the maximum extent feasible without significantly impairing (much greater) social benefits, rather than a literal aggregate-risk-utility test. Unfortunately, these qualifications have all been abandoned in the draft Restatement Third, which, despite widespread criticism, for the first time sets forth an explicit, reductionist, aggregate-cost-benefit test of negligence and then implausibly claims that this transparently utilitarian test is consistent with the principles of justice.

negligence, reasonableness, reasonable care, standard of care, jury instructions, Hand formula, risk-utility, cost-benefit, utilitarianism, efficiency, justice, equal freedom, Restatement of Torts, legal history, Dworkin

Abstract:
This article identifies and discusses the three principal limitations on the extent of legal responsibility for tortiously caused harm and explains and justifies them by reference to the principle of interactive justice, which holds one legally responsible for causing (or being imminently about to cause) harm to another's person or property as a result of conduct that is inconsistent with others' right to equal freedom.

The three principal limitations prevent liability for a tortiously caused harm when (1) the harm almost certainly would have occurred anyway in the absence of any tortious conduct or condition (the "no worse off" limitation), (2) there was a superseding cause of the harm (an actual cause of the harm that (i) intervened between the defendant's tortious conduct and the plaintiff's injury, (ii) was a necessary ("but for") cause of the plaintiff's injury, and (iii) was highly unexpected), or (3) the harm did not occur as part of the realization and playing out of one of the foreseeable risks that made the person's conduct tortious, before the hazards created by the realization of that risk had dissipated (the "risk playout" limitation).

None of the three limitations match the usual academic prescription for limiting the extent of legal responsibility for tortiously caused harm, which would rely solely on a harm-matches-the-risk ("harm-risked") limitation that is often confused with, but which differs significantly from, the risk-playout limitation. However, as this article demonstrates, the results reached by the courts are consistent with the three stated limitations rather than the harm-risked limitation, despite the longstanding efforts of the academic drafters of the Restatements to install the harm-risked limitation as the sole, comprehensive limitation on the extent of legal responsibility for tortiously caused harm.

These three limitations are neither exclusive nor absolute. Some of them do not apply or apply less broadly to some intentional torts and some strict liability actions. Moreover, there are other limitations on the extent of legal responsibility, such as the de-minimis-contribution limitation, as well as limitations on legal responsibility for certain types of losses - such as pure emotional distress, pure economic loss, and wrongful birth - that are more appropriately handled as categorical limitations on the scope of a person's duty rather than as limitations on the extent of legal responsibility for tortiously caused harm.

extent of legal responsibility, limitations on legal responsibility, proximate cause, legal cause, remoteness, proximity, justice, interactive justice

Abstract:
Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying the empirical issue of causal contribution and elaborating a comprehensive test, the "NESS" test, for resolving this issue.

In this paper, which was prepared for the recent Wade Conference on the Third Restatement of Torts: General Principles, I revisit these issues. I focus more than I previously have on the Restatement's unhelpful, opaque, confused, and contradictory treatments of these issues, while also commenting on recent scholarship which fails to properly distinguish these issues. I defend the NESS test of causal contribution against some recent criticisms, propose a practical way of properly presenting the causal-contribution issue to students and jurors, criticize alternative proposed tests (including Jane Stapleton's "targeted but-for" test), further elaborate the notion of causal sufficiency (rather than mere analytical or empirical sufficiency) that underlies the NESS test, and provide a more detailed explanation of the NESS test's application to the conceptually most difficult types of causation cases, the overdetermined multiple-omission cases.

causation, responsibility, actual cause, cause in fact, proximate cause, legal cause, duty, extent of responsibility, NESS test, but-for test, necessity, sufficiency

Abstract:
Tort reform advocates hoped to use a recent case, Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003), as a vehicle for obtaining a Supreme Court opinion critical of the traditional doctrine of joint and several liability. Under this doctrine, each of the multiple responsible causes of an injury is potentially fully liable for that injury. The specific issue in Ayers was the availability of joint-and-several liability under the Federal Employers' Liability Act (FELA), which employs common-law tort doctrines while excluding some of the traditional defenses. The defendant claimed that the traditional common law used fractional apportionment of liability (proportionate several liability), rather than full (joint and several or several) liability, for all cases other than those involving tortfeasors acting in concert; that this was the state of the law when FELA was enacted in 1908; that FELA incorporates the common law's supposed preference for proportionate several liability; that joint and several liability for independent tortfeasors existed only for a brief period during the middle of the twentieth century; that joint and several liability results in a defendant's being liable for more damages than she caused or for which she is responsible; and that the evolving common law, the Restatements, and just principles of liability all support proportionate several liability. As this paper argues, and the Supreme Court recently unanimously concluded, all of these assertions are clearly incorrect.

Under both the common law and federal admiralty law at the time of FELA's enactment, and long before, each defendant who tortiously contributed to a plaintiff's injury was severally fully liable for that injury, regardless of whether other tortious causes of the plaintiff's injury could be joined in the same lawsuit. Full liability was intended and has been consistently employed by federal and state courts under FELA from the time of FELA's enactment. Joint-and-several liability is the universal rule in other countries, and all but a handful of the courts in the United States have consistently stated, even after the adoption of comparative responsibility, that joint-and-several liability is the fairest method of allocating liability among the multiple responsible causes of an injury. The courts note that, under joint and several liability, a defendant generally is only liable for injuries for which it is fully responsible as a tortious, actual, and proximate cause.

The Restatement Third, while not adopting any single allocation method, states that the fairest method for allocating liability among multiple responsible causes of an injury is joint-and-several liability with re-allocation of uncollectible shares among the responsible parties, and it strongly criticizes proportionate several liability. Moreover, despite the misleading arguments of the tort reformers, which have resulted in many legislative inroads on the joint-and-several liability doctrine, the doctrine has nowhere been completely eliminated, and it continues to be the primary allocation rule in a majority of the states, especially for environmental, hazardous material, and product-liability claims.

joint and several liability, several liability, apportionment of liability, multiple responsible causes

Abstract:
This article is an introduction to and commentary on the contributions to a "Symposium on Negligence in the Courts: the Actual Practice." The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts.

Patrick Kelley and Laurel Wendt's survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing of important societal (not purely private) benefits against the risk when applying the usual "ordinary prudence" standard.

Stephen Gilles's investigation of British negligence cases demonstrates that British courts do not employ a literal cost-benefit balancing test, but rather typically employ a "disproportionate cost" test. I believe this test is better described as a "prohibitive cost" test, according to which the defendant's creation of a significant risk to others generally is reasonable only if the risk is significantly outweighed by the expected benefits to those being put at risk (either direct benefits to them as participants in the risky activity or indirect benefits that accrue to everyone in society) and has been reduced to the maximum extent possible without significantly impairing those expected benefits. Gilles also agrees that British courts apply different tests depending on the rights and relationships among the parties, and in particular depending on who is putting whom at risk for whose benefit - for example, depending on whether a person is putting herself at risk in order to benefit another, rather than vice versa, or whether the plaintiff is a trespasser on the defendant's land.

Ron Allen and Ross Rosenberg's investigation of American negligence cases, which I supplement in my commentary with a discussion of some of my own previously unreported studies, discloses that American courts also rarely refer to the aggregate-risk-utility test and that, even in the two states (Louisiana and Illinois) in which the test is most often referenced, it is not actually applied by the courts. Indeed, Louisiana courts explicitly note that questions of reasonableness ultimately turn on considerations of justice and the rights and relationships among the parties.

Anita Bernstein's contribution focuses on the perspective - objective or subjective - that is employed when analyzing persons' alleged negligence. She notes that, contrary to the position taken in the draft Restatement Third, a distinction is often made between plaintiffs and defendants, with a more subjective perspective being applied to the former, especially when the person has a significant mental disability. In an extended commentary, I discuss the different perspectives applied to both defendants and plaintiffs in various types of situations, and I demonstrate that these differences cannot be explained by the usual administrative-convenience rationale, but rather are based, as with the substantive criteria of reasonableness, on the rights and relationships among the parties.

negligence, reasonableness, standards of care, risk-utility, Hand formula, justice, rights, perspective, objective, subjective