Living as One: Tort Law and a Duty to Imagine

Abstract

From the nation’s founding until the present day, tort has been a body of law concerned with the construction of American community. Courts in the first era of American tort decided neighbor-to-neighbor conflicts according to local morality. Over time, scholars and judges managing industrial growth shifted to a second era of American tort, focused on assigning the cost of risks between economic strangers. And as the twenty-first century churns forward, it may be time for a third era of tort – one dedicated to forging social cohesion between diverse identity groups. But if tort is going to rise to the twenty-first century challenge of repairing social fracture, it may have to shuffle off notions of duty adopted by and for actors aspiring to market might. Put simply, modern Americans may no longer owe each other just a duty to foresee the physical impact of their conduct, but also a duty to imagine the dignitary impact of their conduct on fellow participants in the national community.

Keywords: tort, tort theory, duty, legal theory, legal history, social justice