Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured
14 J. Tort L. 279 (2021)
25 Pages Posted: 29 Mar 2022 Last revised: 28 Aug 2022
Date Written: March 28, 2022
How do courts root themselves in traditional tort principles and policies and also develop tort common law in ways that befit contemporary values? This essay argues that judges should weave classic tort aims of harm prevention and redress with contemporary norms of equality of persons, to provide a fuller accounting to people foreseeably risked and harmed by projects undertaken for financial gain. In essence, common law courts must re-ask the crucial question of who is a neighbor in a shrinking world in which risks and consequences can be traced somewhat farther. The article commends a few recent decisions that compel legal regard for a broader cohort of injured people and promote care for their wellbeing. It also encourages scholars to engage more deeply with the state court decisions that determine tort law’s reach.
Keywords: Torts, obligations, prevention, deterrence, risk, safety, negligence, liability rule, equality, common law, rights, liability rule, corrective justice, state constitutions, expressive, asbestos, shipbreaking, Arizona, Bangladesh, Cardozo, Calabresi, Cooley, Dobbs, Goldberg, Keating, Posner, Sharkey
Suggested Citation: Suggested Citation