Contemporary Tort Research Articles

Form and Function in Tort Theory

Abstract Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.

History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory

History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory

Y Sinai/B Shmueli, Maimonides and Contemporary Tort Theory (Cambridge University Press 2020) xiii + 414 pp. ISBN 9781107179295. £ 95 (hardback)

Article Y Sinai/B Shmueli, Maimonides and Contemporary Tort Theory (Cambridge University Press 2020) xiii + 414 pp. ISBN 9781107179295. £ 95 (hardback) was published on December 20, 2020 in the journal Journal of European Tort Law (volume 11, issue 3).

CIVIL RECONCILIATION TORT THEORY: MAKING TORTS PRIVATE AGAIN

This article is largely a reaction to civil recourse tort theory and an attempt to recapture a tort theory that is more thoroughly private. The competing civil recourse and corrective justice conceptions of tort law as private are near the heart of this article, hence its title. While corrective justice and civil recourse theories both see tort law as essentially private, civil recourse theorists argue that tort is private, at least in part, because it is victim-initiated. An important thesis of this article is that tort is victim-initiated because it is private, not vice-versa. The Aristotelian conception of corrective justice suggests that corrective justice, unlike distributive justice, is an essentially private affair, and, indeed, perhaps the very private nature of tort law provides the simplest answer to civil recourse theory -- tort law is essentially private and is structured to encourage the private resolution of any disequilibrium created by the tortfeasor’s conduct. When a putative tortfeasor chooses to avoid injurious conduct (the heart of instrumentalist tort theory), this is a private decision. When a tortfeasor voluntarily repairs harm that he caused, this is an essentially private resolution of the problem. But when a victim acts against the tortfeasor through the courts, the state necessarily gets involved. In this way, civil recourse theory is less private than corrective justice theory. This article proceeds as follows. First, it surveys the three most popular contemporary tort theories, corrective justice, instrumentalism, and civil recourse theory, along with the theory proposed here, civil reconciliation theory. Second, the nature of each tort theory is illuminated by associating each theory with a different stage of a putative tortious interaction. Finally, a partial taxonomy of civil reconciliation tort theory terminology is presented, followed by a brief conclusion.

Taking Torts Seriously

In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what ‘it looks to be’—and that what it looks to be is a law of wrongs and recourse. According to Goldberg and Zipursky, it is not necessary to turn to economics, sociology, philosophy or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, the authors seek to distinguish themselves from two influential camps in contemporary tort theory: (1) theories that argue that tort law’s rights are ‘rights’ in only a nominal sense; and (2) theories that regard tort law’s rights as genuine but that defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The reservations that I explore are two-fold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law’s appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory). It is also complex, multi-layered, and skeletal in its account of tort law’s primary duties—and so, for some scholars, it may appear to be less of a ‘theory of tort law’ than those offered by their competitors (though I argue that this feature is a virtue of their account).

Taking tort seriously

In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what ‘it looks to be’ – and that what it looks to be is a law of wrongs and recourse. It is not necessary, in their view, to turn to economics, sociology, philosophy, or any other discipline to understand tort law: it is sufficient to take seriously judges’ reasons for why they decide tort cases as they do. In advancing this argument, Goldberg and Zipursky seek to distinguish themselves from two influential camps in contemporary tort theory: (a) theories that argue that tort law’s rights are ‘rights’ in only a nominal sense and (b) theories that accept that tort law’s rights are genuine but defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The qualifications that I explore are twofold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law’s appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory); it is also complex, multilayered, and skeletal in its account of tort law’s primary duties and, thus, arguably less of a ‘theory of tort law’ than those offered by their competitors (though I argue that this feature is a virtue of their account).

Race and Tort Law

Although Richard Delgado published the first critique of tort law from a critical race perspective in 1982, the role of race remains undertheorized in torts scholarship and torts theory, taking a back seat to the dominant approaches that rarely mention race or other social identities. This leave the misimpression that tort law is race-neutral and bears little connection to constitutional or civil rights law, where issues of racial justice are more frequently analyzed and debated. This chapter contests that conventional wisdom and demonstrates that the shape of contemporary tort law has been affected by the social identities of the parties and cultural views on race and ethnicity. The significance of race is not confined to a particular doctrinal area but crops up in intentional tort, negligence and strict liability cases and spills over into debates about the proper measure of damages. It enters tort law through a variety of pathways, sometimes explicitly, but more often the influence of race is beneath the surface and can be gleaned only by looking closely at judicial rhetoric or at implicitly biased assumptions relied on by judges and juries. This overview of the contemporary “race and torts” legal landscape borrows frames from critical race and interdisciplinary scholarship to organize the key cases, issues and debates into four, somewhat overlapping categories: (1) racial discrimination, harassment and insult; (2) stereotyping and racialized contexts; (3) racial devaluation; and (4) racially disparate effects. The portrait that emerges is of a flawed system that tends to reproduce rather than ameliorate racialized harms, while never quite losing its potential to change course and advance racial justice.

Duty or Right? A Comment on John Gardner's From Personal Life to Private Law

The chapters that we have from John Gardner’s book—From Personal Lifeto Private Law—are a striking marriage of cultivated sensibility and analytic prowess. Professor Gardner is both acutely sensitive to the lived experience of our moral relationships and highly skilled at disentangling the threads which those relationships weave together to realize rich and distinctive forms of value. The book, From Personal Lifeto Private Law, pursues its themes with both subtlety and rigor. The chapters that we have in hand trace diverse links between personal life and private law and stimulate thinking in the way that only the best tort theory does. Part of that stimulation stems from the fact that Gardner is challenging one of the most influential schools of contemporary tort theory by pervasively denying one of its core theses.1 At the outset of his manuscript, Gardner rejects the particular strand of Kantianism embodied in the work of theorists like Ernest Weinrib and Arthur Ripstein. Wienrib and Ripstein’s variants of Kantian tort theory place the form of the private lawsuit at the center of tort law and, indeed, at the center of private law more generally. So conceived, the law of torts is a special moral phenomenon, one fitted to a distinctive institutional form. Professor Gardner, by contrast, places his emphasis on the connections between the ideas of duty, responsibility, and reparation that lie at the center of private law and their counterparts in the relationships that figure centrally in our private lives.

El daño genético. Bases para su conceptualización jurídica

<p>Este artículo constituye un primer producto parcial inscrito en el proyecto de investigación “Análisis de las Nuevas Tendencias en el Derecho de Daños Contemporáneo” y contiene las primeras discusiones sobre el concepto, tipologías y significación jurídica de la categoría “daño genético”.</p><p>Como objetivo general de esta primera etapa en la ejecución del proyecto de investigación se busca identificar, analizar y valorar el modo como se ha venido conceptualizando la expresión “daño genético” (y otras que pueden considerarse como equivalentes a ella) y determinar los problemas principales que han de abordarse para establecer su significación y alcance jurídicos.</p><p>Su conclusión principal es que la denominación “daño genético” no es unívoca y admite una pluralidad de formas que requieren tratamiento jurídico diferencial, exigiendo, además, la revisión de categorías jurídicas importantes.</p>

Multiple Causation, Apportionment and the Shapley Value

Multiple causation is one of the most intricate issues in contemporary tort law. Sharing a loss suffered by a victim among multiple tortfeasors is indeed difficult and Courts do not always follow clear and consistent principles. Here, we argue that the axiomatic approach provided by the theory of cooperative games can be used to clarify that issue. We have considered the question from a purely game theoretic point of view in Dehez and Ferey (2013). Here we propose to analyze it in a legal perspective. We consider in particular the difficult case of successive causation to which we associate a general class of games called liability games. We show that our model rationalizes the two-step procedure proposed by the Restatement Third of Torts, apportionment by causation and apportionment by responsibility. More precisely, we show that the weighted Shapley value associated to a sequential liability game is the legal counterpart of this two-step procedure.

Multiple Causation, Apportionment, and the Shapley Value

Multiple causation is one of the most intricate issues in contemporary tort law. Sharing a loss suffered by a victim among multiple tortfeasors is indeed difficult and Courts do not always follow clear and consistent principles. Here, we argue that the axiomatic approach provided by the theory of cooperative games can be used to clarify that issue. We have considered the question from a purely game theoretic point of view in Dehez and Ferey (2013). Here we propose to analyze it in a legal perspective. We consider in particular the difficult case of successive causation to which we associate a general class of games called liability games. We show that our model rationalizes the two-step procedure proposed by the Restatement Third of Torts, apportionment by causation and apportionment by responsibility. More precisely, we show that the weighted Shapley value associated to a sequential liability game is the legal counterpart of this two-step procedure.

How tort law empowers

The following realization has begun to dominate contemporary tort theory: in order to understand tort law, theorists must also focus on the legal power that tort law vests in tort victims to pursue a remedy, not only on the implications of holding tortfeasors liable for such a remedy. This insight has lead some of the leading theorists of tort law – often writing under the banner of ‘civil recourse theory’ – to suggest that tort law empowers tort victims to pursue and even to obtain redress from tortfeasors. This view has even been expanded to describe private law in general. Yet, close scrutiny reveals that tort law mostly does not vest in tort victims a legal power over the rights of tortfeasors. The same is most likely true for private law more broadly. For the sake both of descriptive accuracy and of realizing its prescriptive potential, civil recourse theory is best amended to view the legal rights and powers of tort victims, as well as the realities of civil litigation, more soberly and with more conceptual accuracy. This article endorses and grounds the more modest – and I think, orthodox – view on how tort law and private law more broadly empower victims of civil wrongs. Adopting this view makes civil recourse theory truer, yet less novel.

Beneath the Surface of Civil Recourse Theory

This essay offers a progressive critique of civil recourse theory, arguing that Goldberg and Zipursky present too rosy a picture of contemporary tort law that misses the built-in bias embedded in many prevailing doctrines. A fundamental limitation of G and Z’s theory is that it takes no account of the importance of group identity in tort law’s historical construction of wrongs and injuries and fails to detect the skewing of interests that currently receive protection under the law. As classical legal theorists whose primary aim is to reveal the inner logic of tort law, G and Z make little attempt to theorize the impact of cultural polarization and differing perspectives on the complex body of U.S. tort law, suffer from a status quo bias, and are largely oblivious to the theoretical contributions of feminist and critical scholars. The main protagonist of civil recourse theory – the “empowered” individual who seeks vindication of his rights – is a fictional, privatized character who bears little resemblance to the many disempowered injured persons for whom tort law has yet to deliver on its promise of redress for harms suffered. The essay focuses on harms of subordination (domestic violence and sexual harassment), reproductive injury and relational injury as specific examples where civil recourse theory falls short of its goal of describing and explaining the contours of torts.

THE PRIORITY OF RESPECT OVER REPAIR

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent. This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse Tort is a law of wrongs, not just a law of redress for wrongs. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential but subordinate aspect of tort. This paper develops this line of criticism of corrective-justice theory and offers an alternative account of tort that places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is—as the corrective-justice theorists rightly insist—a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with protecting essential conditions of individual agency.

A Public Role for the Intentional Torts

Recent years have seen wide-ranging debates on the nature of tort law. For some, tort law is firmly placed within private law: it is concerned with the rights individuals have against each other and with the legal implications of the violation of those rights. Others emphasise the extent to which broad social considerations enter into the determination of tort liability and the many ways in which tort law today serves a public role that is ill-explained by the private law model. Given the centrality of negligence in contemporary tort law, much of this debate focused on this tort, but recent litigation that culminated in the House of Lords' decision in Ashley v Chief Constable of Sussex Police1 and some academic commentary relating to it provide an opportunity for examining these questions in the context of the intentional torts.

Gaining Some Perspective in Tort Law: A New Take on Third-Party Criminal Attack Cases

Despite the prominence of the objective person standard in tort doctrine, it is a mistake to conclude that perspective has no place in contemporary tort law. Although explicit perspectival standards, such as the woman standard, have gained little acceptance in torts, the perspectives and experiences of non-dominant social groups have sometimes been taken into account in key contexts that involve culturally polarized understandings of fact and differing judgments about what constitutes reasonably safe behavior. Notably, the battle has not been over precise formulations of the duty to exercise reasonable care, but over whether to impose a duty to exercise reasonable care in the first instance.This Article examines third-party criminal attack claims against landlords, businesses, employers, and other entities charged with negligence for failing to detect and remedy dangerous conditions and prevent sexual assaults and other criminal attacks on their premises. The victims in these cases are often women, racial minorities, and low-income residents of high-crime areas. The Article describes the lack of consensus in the courts as to whether defendants owe a duty to take reasonable measures to guard against crime and analyzes the recent position taken by the Restatement (Third) of Torts in favor of imposing a duty in all but exceptional cases. The Article endorses the willingness of some courts in sexual assault cases to impose a duty and articulate a concept of reasonable care that requires defendants to make their premises equally safe for men and women. It criticizes the line of cases which rejects a duty of due care in high-crime areas, excuses defendants from taking precautions proportionate to the risk, and thereby fails to express a norm of equal safety regardless of where a person resides.

Philosophical Issues in Tort Law

AbstractThe union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.

Fairness and Two Fundamental Questions in the Tort Law of Accidents

This paper explores two central questions in the tort law of accidents--the choice between negligence and strict liability, and the level of reasonable precaution--from a fairness perspective. The first part of the paper develops the idea that liability rules are fair when they are ex ante and, over the long run, to the advantage of all those they affect, even those who fare worst under them. The second part of the paper investigates the choice between negligence and strict liability, taking into account two competing conceptions of fairness. One influential conception takes reciprocity or nonreciprocity of risk to be the master test of fairness, holding that accident costs are fairly distributed when the risks which give rise to accidents are fairly distributed. Another influential conception holds that the accident costs of risky activities should be spread among all those who benefit from the activity, ideally in proportion to their degree of benefit. This conception takes the distribution of harm--of the costs of accidents themselves--to be central. Part two of the paper argues that this second conception of fairness is preferable, and that it gives us good reason to believe that enterprise liability is prima facie fairer than negligence liability. Part three of the paper takes up the question of reasonable care, investigating the fair level of precaution. This part of the paper focuses particularly on the question of what fairness requires when an activity imposes a significant risk of serious injury. When an injury is serious--when the harm it does substantially impairs the pursuit of a normal life and when that harm cannot be repaired--fairness cannot be achieved by redistributing accident costs after the injury. Fairness must be achieved, if it can be achieved, by pitching the level of precaution at an appropriately high point ex ante. The paper argues that fairness requires pushing the level of precaution beyond the wealth maximizing point when substantial risks of serious injury are at issue. Fairness requires reducing such risks to the point where further reduction would threaten the activity that engenders them, the point where the long-run health of the activity would be jeopardized. The fourth and final section of the paper examines the connections between fairness and the forms of justice. Taking issue with the dominant position in contemporary tort theory, section four argues that justice (as fairness) in tort accident law is primarily a question of distributive justice, and only secondarily a matter of corrective justice.

Rejecting the Logic of Confinement: Care Relationships and the Mentally Disabled under Tort Law

Contemporary tort doctrine creates perverse incentives to confine individuals with mental disabilities in institutions. Courts have declined to impose a duty of care on defendants with mental disabilities who reside in institutions and injure their caregivers, but hold defendants with mental disabilities who reside in the community to an objective, reasonable person standard. In drawing this distinction based on the defendant's confinement, courts have imported outdated reasoning that an objective standard will provide incentives to relatives to institutionalize such individuals to prevent injury to others. This 'logic of confinement' is at odds with contemporary civil rights law's preference for integration in the least restrictive environment. In assigning liability, courts should focus solely upon the nature of the relationship between the parties, their knowledge and expectations, and their relative abilities to prevent harm.