The Heterogeneity of Tort

Abstract

Abstract Contemporary tort scholarship is torn between a nightmare that torts is merely a motley collection of heterogeneous wrongs and a noble dream that a single unifying value or idea lies latent beneath the field’s turbulent surface. Chapter Eight argues against both theses. Against the grab-bag view, Chapter Eight argues that the role of tort law is stable. By specifying interests important enough to warrant the law’s protection, tort law establishes an essential part of our security as members of civil society—an important part of what John Stuart Mill called “the groundwork of our existence.” Tort law’s diverse regimes of responsibility can be understood as matters of what we owe to each other with respect to coercively enforceable obligations not to interfere with and impair each other’s urgent interests. The stability of tort law’s role and the persistence of its core concerns over time coexist, however, with internal turbulence and incompleteness. Tort is torn between competing principles of fault and strict liability; between individualistic and collective conceptions of responsibility; and many of the interests that it takes to be urgent enough to warrant its protection change over time. Tort is incomplete because there are forms of interference and impairment to which it cannot adequately respond. Most vividly, tort cannot respond adequately to irreparable injury. Chapter Eight argues that we should accept the pluralism of the normative conceptions that inform tort law and welcome the arguments to which tort law’s heterogeneity gives rise as proof of the field’s intellectual vitality.