Tort Theory and Restatements: Of Immanence and Lizard Lips

Abstract

Abstract This Essay gingerly enters the tort theory “wars” that torts scholars have been debating for many decades. Is the essence of tort law instrumentalism in some form, including most notably in providing appropriate incentives to minimize the costs of accidents, as Guido Calabresi normatively proposed and William Landes and Richard Posner descriptively claimed? Or, on the other hand, is tort law simply about the injurer and victim and the just manner for allocating the victim’s loss—blind to any collateral consequences? We address these debates from our perspective as Restatement Reporters, honing in on the question of what role tort theory plays in our work. Our answer is virtually none. There are two independent and sufficient reasons for this conclusion. First, we are deeply skeptical that there is an immanent meta-theory that explains tort law or guides its development. Instead, we think tort law is a hodgepodge, influenced by public policy, culture, administrative concerns, evidentiary lacunae, technological developments, and random events. These eclectic and shifting forces influence what tort law is and how it evolves with the felt needs of any given era. Tort law, in short, is built from the bottom up, not the top down and is far too messy to be the product of intelligent design. Beyond that, even if there were such a force at tort law’s heart, that force would still have little influence on our work. The doctrinal level at which Restatements operate and the case law that fuels the production of Restatements—ground level law—is a disjunction from theory, which operates at 30,000 feet. This disjunction means that the latter is of little assistance when it comes to addressing the quotidian matters important to tort law and Restatements. Whether tort law is entirely instrumental or solely about corrective justice cannot answer the question of whether parents should have immunity from tort suits by their children. The answer to that question must be found in the case law, not in Kant.