Is It Wrong to Do Right When Others Do Wrong?
34 Pages Posted: 31 May 2015
Date Written: April 3, 2001
In recent years, American tort law has been the beneficiary of a growing effort by sophisticated legal theorists to advance a theory that both descriptively and normatively accounts for its doctrines on non-utilitarian grounds. Yet despite the formidable challenges that this literature has posed for the economic analyses that have dominated tort law theorizing in recent decades, central tort doctrines persist in defying efforts to describe and defend them as vehicles for redressing rights violations. In saying this, I do not mean to refer to such obvious things as the fact that the Hand Formula appears to allow rights violations in the name of utility or wealth maximization (although corrective justice theorists must admit that the fact that the Hand Formula dominates contemporary characterizations of negligence is a painful theoretical thorn in their sides. Rather, I have in mind the more subtle but more significant fact that myriad tort doctrines reflect the fundamental thesis that persons have obligations to (re-)structure their conduct so as to mitigate the harms caused by others’ foreseeable wrongdoing — obligations which, when violated, properly serve as a basis for declaring such persons negligent.
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