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Abstract: This article analyzes twentieth-century tort scholarship in terms of a five-sided debate between compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice theory, and individual justice theory. It surveys, parses, and analyzes the central interpretive and prescriptive claims made by each of these theories, exploring and exposing to criticism their underlying assumptions and commitments. The article concludes with a plea for greater theoretical self-consciousness among tort scholars, and for a shift in focus away from the strict-liability v. negligence debate.
Calabresi, Coase, corrective justice, history, interpretive, negligence, Posner, pragmatism, prescriptive, private law, strict liability, theory, torts, Weinrib
Abstract: John Kenneth Galbraith coined the phrase "the conventional wisdom" to refer to a collection of ideas that members of a group find acceptable. Acceptability, he observed, rests on a variety of considerations other than veracity, which means conventional wisdom can be wrong. Sometimes it is dead wrong. Other times it blurs truth and falsity. In the latter case, it might be said to contain half-truths. Because professors are in the business of critical inquiry, one might think that they are less reliant on "mere" conventional wisdom, but this supposition is false. Conventional wisdom plays as much of a role in academia as in other walks of life. The concern of this Article, based on the 2007 Valparaiso University Monsanto Lecture, is to explore conventional wisdom among torts professors, and perhaps law professors more generally. Specifically, it identifies ten half-truths embedded in standard academic depictions of tort. Because each distorts as much as or more than it enlightens, each must be discarded. The point of this exercise is conceptual and pragmatic. The immediate goal is to clarify; the further hope is that clarification might lead to better judgments about how to adjudicate tort cases, how to undertake legislative reform of tort law, and how to teach torts.
Accidents, Addison, Claims, Common Law, Compensation, Delict, Hilliard, Half-Truths, Holmes, Injury, Insurance, Make-Whole, Policy-Making, Pluralism, Standards of Liability, Settlement, Theory, Top-Down Theory, Torts, Trespass, Wrongs
Abstract: This article argues against the now-conventional idea that the remedial concept of make-whole compensation - understood to refer to a damages payment that corresponds to the losses a tort victim has suffered - is somehow an essential feature of substantive tort law. The article proceeds mainly by reviewing historical materials, including judicial decisions and treatises. These suggest that the prevailing notion of tort damages was until the late Nineteenth Century one of "fair" rather than "full" compensation. They also suggest that the modern tendency to equate tort with the idea of making whole rests on a subtle but critical re-characterization of the concept of injury, which once predominantly referred to a doing - a wronging of the victim by the tortfeasor - but now predominantly refers to an outcome - a loss suffered by the victim. Appreciation of these contrasts, I argue, sheds light on various contemporary debates, including those concerning the propriety and purposes of punitive damages. It also helps us to see that the tendency of modern academics, starting with Holmes, to define tort in terms of a notion of indemnification or restoration is in fact an attempt to impose a particular and controversial theory of tort onto tort doctrine and practices. Finally, I argue that a recovery of the traditional division between substantive tort law and the law of remedies, as well as an appreciation of the fair compensation conception of tort damages, will help academics grasp more clearly what tort law is and what sort of work it is well-suited and poorly-suited to do within our legal system.
Torts, private wrongs, damages, injury, make whole, making whole, status quo ante, remedies, compensation, indemnification, compensatory damages, punitive damages, exemplary damages, Bacon, Blackstone, Dane, Greenleaf, Sedgwick, Austin, Holmes, Horwitz
Abstract: Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an 'eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results - these matters determine whether someone is a tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned tort law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on tort law's luck-sensitivity to argue that tort - which seems on its face to be a law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck. In this Article we are argue that the role of luck in torts does not undermine the case for understanding tort as a law of wrongs, nor does it make the case for dismissing tort law as morally arbitrary. Drawing upon the canonical articles on "moral luck" by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control. The Article proceeds by distinguishing and explaining two aspects of tort law's luck-sensitivity: (1) luck regarding whether one's tortious conduct causes damage, and, if so, how much ("causal luck"); and (2) luck regarding whether one's efforts to comply with tort law's objective standards are successful ("compliance luck"). Causal luck, we argue, does not introduce objectionable arbitrariness into tort law. On the contrary, it is a natural and necessary feature of a body of law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define "wrongs." We conclude by suggesting that careful attention to the particular senses in which torts are wrongs not only entails the rejection of familiar critiques of tort, but also sheds light on values that tort law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.
causation, Holmes, luck, norms, objective standard, Posner, redress, responsibility, Schroeder, Waldron, wrongs
Abstract: The last two decades have witnessed the enactment of an array of defendant-friendly tort reforms, in turn prompting numerous constitutional challenges to them. Some state courts have been receptive to these challenges, but the likely prevailing view among them, and certainly the predominant view in the federal courts and the legal academy, is that such challenges amount to attempts to resurrect Lochner's misguided constitutionalization of mere common law. According to this view, modern tort reform measures are a textbook example of the sort of social and economic legislation to which highly deferential rational basis review ought to apply. This Article takes a fresh look at the issue of constitutional limits on tort reform. It argues that, as a matter of history, text, structure, and normative theory, the Fourteenth Amendment confers on individuals a "structural due process" right to a body of law that empowers them to seek redress against those who have committed legal wrongs against them. Corresponding to this right is a prima facie affirmative obligation on states to provide a law of redress. Recognition of this right and duty in turn warrants judicial review of defendant-friendly tort reforms that is more searching than rational basis analysis, and more sensitive to the underlying tort claim and the type of reform at issue, yet still leaves ample room for states to engage in responsible law reform. One broader ambition of this Article is to recover an intellectual tradition that views public and private law holistically - as integrated components of our constitutional frame of government - while also demonstrating that this way of thinking is not bound up with commitments to laissez faire, formalism, or judicial imperialism. It also outlines a political theory, inspired by Locke and Blackstone, which identifies the special characteristics and functions of a law for the redress of private wrongs, and thereby helps to explain why tort law has enjoyed, and perhaps should continue to enjoy, a central place within our legal system.
affirmative rights, Blackstone, Coke, common law, constitution, due process, duty, fourteenth amendment, Hale, injury, Lochner, Locke, privileges or immunities, private law, private wrongs, protection, recourse, redress, relational duty, social contract theory, substantive due process, structural
Abstract: This essay argues in favor of understanding tort law as a law of private redress, rather than public regulatory law. Part I uses the U.S. Supreme Court's 2003 decision on punitive damages in State Farm Mut. Ins. Co. v. Campbell to demonstrate some of the weaknesses of public law conceptions of tort, and some of the strengths of a private law conception. Part II maintains that a private law model need not be associated with formalist reasoning, an elevation of common law over statute, or political conservatism.
torts, private law, common law, redress, public law, damages, punitive damages, formalism, Federalists, Supreme Court, pragmatic conceptualism
Abstract: To prevail on a claim of common law fraud, the plaintiff must prove reliance on the defendant's misrepresentation. This requirement is puzzling, given that, under many modern formulations of the tort, the plaintiff must also prove that the misrepresentation was a factual and proximate cause of the plaintiff's detriment. One standard view of reliance emphasizes its role as the mechanism by which defendant's misrepresentation generates harm to the plaintiff. But, cast as such, it seems redundant with factual causation. Another way reliance is understood is as setting a practical limit on the amount of liability that a misrepresentation can generate. So regarded, it seems redundant with proximate cause. In this Article, we explain why reliance forms a distinct element of fraud. Conceptually, we argue, the wrong of fraud is not an interference with the victim's interest in avoiding certain types of harm, such as economic loss, but instead an interference with her interest in being able to make certain kinds of decisions free of misinformation generated by others. Thus, a knowing misrepresentation that foreseeably causes harm to another does not defraud that other unless and until she is induced by that misrepresentation to make a decision she would not have otherwise made. Structurally, we argue that the requirement of reliance is linked to a more general feature of tort law, namely, the relational structure of tort duties. To commit a tort is to breach a duty that is owed by an actor to a class of potential victims. Therefore, to prevail, a tort plaintiff must establish not merely that wrongful conduct has caused harm to her, but that the conduct was wrongful as to a person in her position. When it comes to fraud, plaintiff's reliance is essential to establishing that the defendant's conduct was wrongful as to her, and hence to establishing her right to recover. Having explained the place of reliance within fraud, we next explain why reliance need not be central to other wrongs that bear some resemblance to fraud, including, for example, private enforcement actions brought under consumer protection statutes. Likewise, we demonstrate that some claimants who have been injured by misrepresentations without relying on them will have valid claims for other torts, such as negligence and tortious interference with contract. The take-away point is this: An understanding of why reliance functions (or doesn't function) as a component of a legal wrong that involves misrepresentation must be sensitive to the institutional source of the legal prohibition that defines the wrong and, relatedly, the interests that are meant to be served by that prohibition.
consumer protection, deceit, duty, fraud, misrepresentation, private rights of action, proximate cause, relational duty, reliance, securities fraud, tortious interference
Abstract: This article addresses negligence claims brought by persons who are placed at heightened risk of as-yet unmanifested injuries. It argues, first, that such claims are not rightly characterized as creating a class of "inchoate" torts: we maintain that there are no inchoate torts. Further, we note that the absence of inchoate torts, although difficult to explain on standard economic-deterrence views, is quite intelligible on a conception of tort as a law of civil recourse. Second, the article argues that claims for unripened injuries cannot be salvaged as claims for the "harm" of being exposed to heightened risk of illness. The duties of negligence law are duties to take care not cause full-blown injuries, not duties to avoid creating risks of injuries, and we offer several overlapping explanations as to why negligence law operates in terms of such duties. Third, the article asserts that heightened-risk claims are not well captured within the doctrinal category of "negligent infliction of emotional distress," in large part because the category itself does not make much sense. To the extent, claims for fear of future injury ought to be actionable, it is only in situations where that fear arises from the plaintiff's having been exposed to an objective threat of physical harm or disease. To the extent actionable, actions for negligence causing fear of future injury are thus best seen as close cousins of the ancient tort of assault. Finally, we maintain that suits seeking reimbursement for medical monitoring to detect the future onset of illness are best understood not as seeking compensatory damages for ripened torts, but instead as requesting equitable relief prior to ripening in the form of court-ordered funding of medical treatment. Conceptualizing medical monitoring suits in this manner, we argue, makes sense of the courts' reluctance to award lump sum damages to such claimants, and provides judges with a more coherent framework within which to determine when they should award funds for monitoring.
assault, disease, duty, emotional distress, equitable relief, fear, future injury, harm, inchoate, injury, medical monitoring, negligence, recourse, risk, threat
Abstract: In The Idea of Private Law, Ernest Weinrib argues that tort law is "just like love." By this, he means that tort law is best understood formally, for what it is, rather than functionally, for what it does. Formalist theory is presented as a stark alternative to the instrumentalist theories that have dominated modern American torts scholarship. This essay argues that Weinrib's approach is, in one important and revealing respect, of a piece with those that he criticizes. Specifically, by conveying an attitude of fatalistic acceptance toward tort law, it partakes of the generally unsympathetic disposition maintained by the vast majority of modern tort scholars toward their subject. For Weinrib, no less than for Calabresi, Coleman, Epstein, and Posner, tort law remains "unloved."
Coleman, history, love, Posner, torts, Weinrib
Abstract: Reproduced herein with learned commentary is a report from the first Student-Faculty Relations Committee ever to convene in a law school. That Committee was formed in the winter of 1882 by Dean Langdell of the Harvard Law School. Outraged at the incomprehensible instruction of a new faculty member (one Professor Holmes), dozens of Harvard 1Ls petitioned for a tuition refund or, in the alternative, admission to Yale. The students' threats were dropped when Langdell promised to "arrange something else" for Holmes - a judgeship, as it turns out - and after the Committee produced the subsequently ratified Bill of Rights. Dean Langdell's endorsement of the Bill of Rights demonstrates that he was interested not only in constructing arid legal taxonomies, but also in the education of law students. Here the modern reader must resist presentism. Strange as it may now seem, both of these objectives were at the time treated as worthy goals. Langdell's purpose is amply reflected in various inter-office memoranda that were later published as the Formalist Papers, particularly No. 10 (concerning the potential of self-interested faculties to dominate law school decision-making at student expense). Needless to say, the purpose of the modern law school is to oversell its reputation. Still, despite the passage of time and this shift in orientation, the Law Student's Bill of Rights speaks directly to our contemporary predicament.
Langdell, Holmes, Harvard, Bill of Rights, Student-Faculty Relations, Amendments, Clause, Establishment, Speech, Ratification, Legal Education
Abstract: This is a review of "Cunning," by Don Herzog. "Cunning" criticizes as unilluminating a set of dichotomies that are routinely invoked by modern academics to explain human behavior and to describe practical reason, including those between fact and value, reason and desire, and self-interest and morality. The first part of the review attempts to unravel some of the threads of Herzog's elegant and playful argument. The second maintains that law professors, in particular, will both enjoy and profit from the book's engaging, insightful, and unsettling blend of philosophical pragmatism, historically grounded casuistry, and unsentimental humanism.
attitudinalism, casuistry, cunning, fools, Hobbes, humanism, knaves, law and economics, legal reasoning Leviathan, Machiavelli, masks, Odysseus, The Odyssey, practical reason, rationality, reductionism, self-interest, social theory, the tender years doctrine, tort
Abstract: In commenting on an Article by Professor Stephen Perry, this piece first sets out to clarify the concepts of "harm" and "injury" as used in tort law. Specifically, it suggests that harm should be understood as a special instance of injury, to be contrasted with other forms of injury, including rights-violations and lost expectancies. In its second part, the paper offers a novel analysis of the proximate cause limitation on tort liability. Rejecting standard views that proximate cause serves as a floodgate to prevent "excessive" litigation or liability, I argue that the doctrine instead specifies a requirement of "wronging": In negligence law, it is only if an actor's carelessness causes harm in a "natural" sequence that the victim is "entitled" to claim that she has been mistreated by the defendant. By preventing the attribution of responsibility for certain fortuitously-caused harms, proximate cause doctrine thus limits liability to instances in which there is not merely wrongful conduct on the part of the tortfeasor, but wrongful conduct towards - i.e., a wronging of - the victim. I suggest that this understanding of proximate cause fits well within a "civil recourse" theory of tort law, and helps explain away various puzzles, such as the thin-skull rule, and the greater willingness of intentional tort doctrine to impose liability notwithstanding fortuitous causation.
Torts, Negligence, Harm, Injury, Expectancies, Proximate Cause, Wrong, Wronging, Thin Skull Rule, Recourse
Abstract: This Essay, part of a Fordham Law Review symposium on the "internal point of view" in law and ethics, explores the intersection of jurisprudence and tort theory. In American legal thought, these two subjects were indelibly linked in the work of Oliver Wendell Holmes, Jr. In particular, Holmes's claim that legal duties are just predictions of judicially-imposed sanctions went hand in hand in with his understanding of tort as a law of indemnity or loss-shifting. As it turns out, these two core features of Holmes's thought have suffered radically different fates. More than a century after the publication of The Common Law, Holmesian-inspired thinking still dominates academic tort theory. Yet in modern jurisprudence, H.L.A. Hart is widely credited with having demolished the prediction-of-sanction account of duty. Conceding that Holmes's analysis was well-motivated in its attempt to distinguish legal from moral duties, Hart nonetheless demonstrated that the prediction theory errs in divorcing the concept of a duty from notions of normativity or "oughtness." In place of an emphasis on sanctions, Hart located the distinctiveness of legal duties in their being grounded in legal rules, and the observation that citizens who accept legal rules feel a special sort of normative pull to comply with those rules. We argue that it is time for tort theory to catch up with analytic jurisprudence. Tort law ought to be understood as a law of genuine legal duties (guidance rules), rather than predictions about sanctions (liability rules). In developing this claim, we rebut several prominent contemporary arguments meant to bolster the case for treating tort law as a collection of liability rules.
bad man, common law, duty, Hart, Holmes, internal point of view, obligations, positivism, tort, tort theory, wrongs
Abstract: This Article responds to "Abusing Duty," by Dilan Esper and Gregory Keating. That article decries recent California decisions for too readily invoking the duty element of negligence as a ground for issuing judgments for defendants. In particular, it criticizes courts' reliance on the duty-based doctrine of primary assumption of risk to support matter-of-law rulings against persons injured in the course of recreational activities. It likewise decries their willingness to dismiss negligence suits against property owners on no-duty rationales that reflect an exaggerated concern for ownership rights. Although we agree that many of these decisions are mistaken, we argue that Esper and Keating's analysis of what has gone wrong does not get to the root of the problem. The fundamental difficulty reflected in these decisions is not simply that courts are too aggressively applying certain no-duty doctrines, but that they are operating under a misconception of what the concept of duty means within negligence law, a misconception that, ironically, is traceable to the work of the liberal California Supreme Court of the 1960s. That Court, purportedly in the name of progress, rejected the idea that the duty element of negligence calls for a circumscribed inquiry into whether a given actor is obligated to conduct himself with reasonable care for certain interests of certain others, and instead embraced Prosser's notion that duty is a cipher that means whatever courts need it to mean in order to achieve the right aggregate levels of negligence liability. In short, these no-duty decisions go astray because modern deconstructions of the concept of duty invite lawless judicial discretion; duty is abused because it is being asked to do too much, and to do so in a manner that is unconstrained. We argue that decisionmaking in this area can only be improved if the California courts reject the idea that duty is a judicial wildcard and, in turn, accept that duty and various related tort concepts and doctrines - including implied assumption of risk - have meanings that can function to channel judicial discretion and can moderate the extent to which judges' political commitments determine the content of the law of negligence. Permitting other principles within negligence law to serve this moderating role in shaping doctrine provides the best hope of shielding duty from further abuse.
Assumption of Risk, California Supreme Court, Duty, Emergency Doctrine, Emotional Distress, Premises Liability, Recreational Activities, Dillon v. Legg, KFC v. Superior Court, Knight v. Jewett, Ornelas v. Randolph, Rowland v. Christian
Abstract: Although published in 1970, The Costs of Accidents was written in the 1960s. In its boldness, its brilliance, and its progressive aspirations, the book is emblematic of the great society movement out of which it developed. Unimpressed with the legal and scholarly status quo, Calabresi set out to reinvent "accident law" in a manner that would best realize the set of values we care about most: minimizing accident costs within the limits set by justice. As confident as he was in his own framework, so was he critical of the value of the fault system which governed much of accident law then, and still does today. The bottom line is that the fault system is ill-suited to reducing primary accident costs. And, he argues, it is not even well suited to doing justice, so there is nothing to justify its ineptitude at cost reduction. We respond to Calabresi's critique both within his framework of primary cost reduction, and more broadly, and we articulate both responses in terms of social norms of responsibility. As a means of primary cost reduction, we argue, the internalization of social norms of safe conduct is critical. These norms are sustained, in part, by their entrenchment within a legal system that links liability to duties and duties with norms of responsibility. Moreover, the creation of "loci of responsibility", the articulation of obligations, and the provision of private individuals with an avenue of redress against one another are valuable aspects of the fault system even apart from their connection with primary cost reduction. The Costs of Accidents, by looking only at cost reduction and justice, entirely overlooks a range of values enjoyed by the fault system. In the inspiring enthusiasm to improve human welfare across the board, thinkers of the 1960s risked rendering "responsibility" a casualty of the Great Society. In following those thinkers, we must understand notions of responsibility as a friend, not a foe, of social improvement.
Abstract: Loss-of-a-chance doctrine has been developed primarily in the context of medical malpractice law. When employed, it eases the plaintiff's burden of proving causation. Instead of having to prove that the doctor's neglect of duty more likely than not was a but-for cause of the plaintiff's injury, the loss-of-a-chance plaintiff only has to prove that the malpractice made it somewhat more likely that she would suffer an injury. Several prominent commentators have recently called for application of loss-of-a-chance to legal malpractice, primarily out of concern over the difficulty a legal malpractice plaintiff faces in proving that, but for her lawyer's carelessness, she probably would have prevailed in the matter in which she was being represented. These remarks attempt to explain why, despite the intuitive appeal of the doctrine on grounds of both fairness and deterrence, courts ought to be wary about transplanting it into the law of legal malpractice.
Torts, Negligence, Cause, Chance, Malpractice, Duty, Risk
Abstract: In 1964, Justice Byron White joined the majority opinion in New York Times v. Sullivan. Yet, within ten years, he was angrily dissenting from post-Sullivan decisions, and within twenty years he was advocating the adoption of an entirely different approach to setting constitutional limitations on defamation liability. Standard analyses suggest that this record reveals both inconsistency and growing conservatism. I maintain instead that White held to a consistently narrow reading of Sullivan, one which recognized a "conditional privilege" to injure certain persons by means of false statements innocently or carelessly published. By contrast, the shifting coalitions of Justices who formed the majorities in post-Sullivan decisions were, for various reasons, being slowly pulled toward the idea that Sullivan had implicitly held that government altogether lacks the power to attach liability to the publication of statements on matters of public concern, even when they are published for the purpose of injuring another. In the course of establishing these claims about Justice White's defamation jurisprudence, this comment also seeks to demonstrate a broader point, namely, that Justice White has been mislabeled by critics and admirers as a "quintessential" New Deal Liberal. The dominant strain of New Deal Liberalism was Benthamite in spirit. It embraced legislation and regulation - public law - as the superior, progressive alternative to hidebound common law. Justice White is an interesting figure in the intellectual history of Twentieth-Century law in part because he was one of the rare New Dealers who appreciated the importance of common law. In his view, the Court's abandonment of Lochner-ism and the idea of law as a brooding omnipresence simply did not entail a rejection of the common law as an important means for vindicating individual rights. Thus, his concern that the Court not expand Sullivan turns out to have been motivated by an unfashionable yet coherent conception of our constitutional system in which the private law of tort, property and contract has an important role to play even after the rise of the administrative state.
Byron White, Justice White, First Amendment, Sullivan, Defamation, Libel, Slander, Jurisprudence, Realism, Common Law, Private Law, Public Law, New Deal
Abstract: This Essay explains why lawyers, policy-makers and scholars interested in medical malpractice reform and tort reform more generally must attend to tort theory. Theory does not provide answers to policy questions. Rather, it frames and guides analysis. The Essay uses two examples to make its point. The first concerns the phenomenon of "underlitigation," which is typically treated by commentators as a symptom of tort law's deficiencies as a scheme for deterring undesirable behavior and/or compensating injury victims. This evaluation presupposes, of course, that tort law is properly theorized as a scheme for deterring and/or compensating. An alternative and more satisfactory conception of tort treats it as a law that empowers victims of wrongs to respond to those wrongs by seeking redress from their wrongdoers. Given this alternative conception, we will want to know much more about why malpractice victims tend not to sue. For if they are knowingly and voluntary choosing not to pursue claims that the law has made available to them, then, on a wrongs-and-redress theory, there is nothing at all wrong with the tort system. The second example concerns the constitutionality of reform measures that cut back on malpractice liability in the name of making medical services more readily available or cheaper. If tort law is conceived as public regulation of bad medical practices - i.e., enforcement actions brought by plaintiffs playing the role of private attorneys general - then courts probably should assess the constitutionality of malpractice reform measures under toothless rational basis analysis. If, by contrast, tort is understood as a law for the redress of wrongs, courts will be entitled to deploy a more robust form of judicial review.
deterrence, malpractice, redress, tort reform, tort theory, under-litigation, wrongs
Abstract: Judges have long struggled to articulate rules and principles governing the responsibility in tort of a remote actor whose wrong consists of setting the stage for a second wrongdoer who inflicts injury on a victim. The problem is found in a wide variety of scenarios ranging from drivers who leave keys in cars that are stolen, to social hosts whose intoxicated guests drive home, to gun manufacturers who market in ways that arguably render their guns more available for criminal misuse. Building on Robert Rabin’s idea of “enabling torts,” the Restatement (Third) of Torts: Liability for Physical and Emotional Harm adopts an aggressive strategy for dealing with this problem: it denies that there really is a problem. Claims against remote actors, it says, require no different treatment than claims against those who cause injury without intervening wrongdoing.
In this contribution to a symposium on the Restatement’s Physical and Emotional Harm provisions, we demonstrate that the Reporters’ proposed approach runs afoul of numerous well-established doctrines that limit remote-actor liability while unjustifiably glossing over the actual grounds on which courts allow for the imposition of liability on remote actors. We then lay out an alternative framework for assessing remote actor liability that is truer to doctrine, more workable for judges, and more in keeping with the nature of tort as a law of wrongs and recourse.
Apportionment, Attribution, Affirmative Duty, Causation, Concurrent Negligence, Intervening Wrong, Modified Comparative Fault, Negligence, Negligent Enabling, Negligent Entrustment, Negligent Marketing, Proximate Cause, Social Host Liability, Superseding Cause, Torts
Abstract: Jason Solomon's very interesting article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain the existence of rules that bar or limit recovery by a tort victim on the ground that she failed to take certain pre-tort steps to protect herself from harm, or failed to take certain post-tort steps in response to the harm. The vitality of these "judging plaintiffs" doctrines, he maintains, attests to the superiority of an alternative theory of tort known as civil recourse theory. According to Solomon, recourse theory treats tort law as one component of a liberal political order and thus explains these doctrines in terms of a liberal principle calling for state nonintervention where it was or is unnecessary. In this comment, I situate Judging Plaintiffs within current tort theory debates, describe briefly its major claims, and discuss some of the doctrinal and theoretical strengths and weaknesses of the position it stakes out.
Assumption of Risk, Civil Recourse, Corrective Justice, Efficient Deterrence, Negligence, Right of Action, Self Help
Abstract: Books reviewed in this article: Tobias M. C. Asser, Legal Aspects of Regulatory Treatment of Banks in Distress Philip Alston, Peoples' Rights Craig Scott (ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation Stephen Shute and A. P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part Catharine A. MacKinnon, Sex Equality Donald Zillman, Alastair Lucas and George (Rock) Pring (eds.), Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources
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