The Fall and Rise of Blame in American Tort Law
23 Pages Posted: 30 May 2003
It is well known that Legal Realists were skeptical of "transcendental nonsense" in all its forms. In torts, this meant a realist-led revolution against defining terms such as "proximate causation," "duty" and "fault" in terms of conceptualist language. The attack on fault was led by Fleming James and Albert Ehrenzweig, who viewed the term as a dangerous mystification of important policy questions. James, in particular, felt that an immature attachment to a moralized concept of fault impeded the adoption of strict liability, since it provided defenders of the status quo with a moral argument against cost-spreading. In the post-war era, many tort doctrines changed in response to the realists' effort to promote cost-spreading through tort liability. In this essay I argue that although the doctrinal recommendations of realists such as James were adopted by progressive torts scholars and lawyers, his philosophical rejection of fault was not. Today, modern progressive tort law is filled with the language of blame. The resistance to no-fault auto insurance on the part of consumer groups is often explained by a need to hold faulty parties accountable. Similarly, the critique of the "tort reform" movement is often couched in terms of the need to hold wrongdoers - such as doctors who commit malpractice - accountable for their blameworthy conduct. This essay explores the irony that the world that the realists helped create seems to have rejected utterly their rejection of blame. This essay is part of the symposium "Responsibility & Blame: Psychological and Legal Perspectives," published in Volume 68 of the Brooklyn Law Review.
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