Theory Of Tort Law Research Articles

Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs

Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that his theory fails to meet such a test.The Comment proceeds in four stages. We first lay out the basic structure of Ripstein’s theory of the justice of tort law and the nature of the argument he deploys in developing this theory (Part I). We then suggest that, and explain why, his effort to derive the content of the justice of tort law by taking legal doctrine at face value must fail (Part II). The next two stages of the argument consider an alternative reading of Private Wrongs (Part III) and a broader assessment of the justice of tort law against the background of public law (Part IV).

The Association between Medical Malpractice Risk and Healthcare Quality: Evidence from Texas

According to tort law theory, medical malpractice liability may deter negligence by healthcare providers. However, advocates of malpractice reform often argue that most malpractice claims are unrelated to provider performance. We study the connection between hospital adverse events and malpractice claim rates in the two states with public datasets on med mal claim rates: Florida and Texas. We use Patient Safety Indicators (“PSIs”), developed by the Agency for Healthcare Research and Quality, to measure rates for 17 types of adverse events. Hospitals with high rates for one PSI usually have high rates for other PSIs. We find a strong association between PSI rates and malpractice claim rates with extensive control variables and hospital fixed effects (in Florida) or county fixed effects (in Texas). Our results, if causal, provide evidence that malpractice claims leading to payouts are not random events. Instead, hospitals that improve patient safety can reduce malpractice payouts.We also study local variation in adverse event rates, in the spirit of the Dartmouth Atlas work on variation in treatment intensity. We find large variations, both across counties and across hospitals within counties. This suggests that many adverse hospital events are avoidable at reasonable cost, since some hospitals are avoiding them.

The Association between Patient Safety Indicators and Medical Malpractice Risk: Evidence from Florida and Texas

AbstractAccording to tort law theory, medical malpractice liability may deter negligence by health-care providers. However, advocates of malpractice reform often argue that most malpractice claims are unrelated to provider performance. We study the connection between hospital adverse events and malpractice claim rates in the two states with public data sets on medical malpractice claim rates: Florida and Texas. We use Patient Safety Indicators (PSIs), developed by the Agency for Healthcare Research and Quality, to measure rates for 17 types of adverse events. Hospitals with high rates for one PSI usually have high rates for other PSIs. We find a strong association between PSI rates and malpractice claim rates with extensive control variables and hospital fixed effects (in Florida) or county fixed effects (in Texas). Our results, if causal, provide evidence that malpractice claims leading to payouts are not random events. Instead, hospitals that improve patient safety can reduce malpractice payouts. We als...

Is Race- and Sex-Based Targeting Efficient? A Closer Look at Tort Law's Discriminatory Damage Awards

Inherent within current tort law are incentives to target individuals and communities based on race and gender. Surprisingly, the basis for this targeting is the seemingly neutral use of three different race- and gender-based statistical tables (for wages, life expectancy and worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women. Thus, tort law’s remedial damage scheme perpetuates existing racial and gender inequalities by compensating individuals, especially children, based on their race and gender. Even worse, tort law creates ex-ante incentives for potential tortfeasors to engage in future discriminatory targeting of women and minorities. This paper provides the first full account of courts' existing discriminatory practices. The paper then addresses the deficiencies in the non-blended tables that courts use (tables that use race and gender as discriminating factors) and the reasons behind their continued use. The paper shows how the various theories of tort law (corrective justice, distributive justice, and economic efficiency) have contributed to a misunderstanding of the proper damages calculation, and illustrates how the very same theories can be used to engender a change in the current praxis. It then challenges the conventional wisdom that the use of race- and gender-based tables is justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how they are used in courts to calculate damages for individuals, and in the incentives they create. The paper then reveals that similar discriminatory practices ironically exist in federal law such as the Americans with Disabilities Act and even Title VII whose main goal is to combat gender and race discrimination. Finally, this paper proposes a feasible, low cost, and logical solution that pushes toward a more efficient and less discriminatory tort law remedial system: courts should immediately stop using non-blended tables.

THE FAILURE OF UNIVERSAL THEORIES OF TORT LAW

ABSTRACTMany scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

Legal Pluralism in Tort Law Theory: Balancing Instrumental Theories and Corrective Justice

Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixedpluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory. Starting from a position of support for the mixed-pluralistic thesis, this Article first identifies the advantages this approache offers and then proposes a new mixedpluralistic approach which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories based on the profile of the defendant and the nature of his tortious act, striking a balance between the various goals of tort law, as the situation warrants. Thus, the suggested mixedpluralistic approach offers a new and actual balance between corrective justice and instrumental theories—that is, distributive justice and optimal deterrence. It balances between deontological theories, which are interested in the moral aspect of a tort action, and utilitarian theories, which are interested in the consequentialist outcome of a tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel. The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.

TEORÍAS SUSTANTIVAS DE LA RESPONSABILIDAD EXTRACONTRACTUAL Y LA RELEVANCIA DE LA METODOLOGÍA

Tradicionalmente se ha entendido que la mejor teoría de la responsabilidad extracontractual es aquella que mejor explica los rasgos centrales de la práctica. En este sentido, los defensores de las teorías deontológicas, basadas en principios de justicia, han rechazado el poder explicativo del análisis económico del derecho. Han sostenido que no logra reconstruir la práctica dando sentido a sus conceptos centrales, ni al modo en que están relacionados. Por lo tanto, no puede explicar la pauta de inferencias que llevan a un juicio de responsabilidad. En este trabajo me propongo mostrar que ambas teorías son capaces de explicar aspectos diferen- tes de la práctica. En contra de lo que se asume generalmente, el análisis económico del derecho y las teorías deontológicas no son teorías rivales, sino compatibles, puesto que tienen por objeto responder a preguntas distintas.

Hegel’s Understanding of Damage Reparation

This paper outlines Hegel's understanding of damage reparation. By taking as its starting point the hypothesis on the embeddedness of paragraph 98 of Hegel's Philosophy of Right in Hegel’s general theory of punishment, it sets out the legal nature and functions which Hegel attributes to the institute of damage reparation. It then compares Hegel's understanding of damage reparation as outlined in this paper with viewpoints of the contemporary general theory and philosophy of law. Finally, it determines the extent to which Hegel's understanding of damage reparation is in line with the increasingly perceived need for a new jurisprudential explanation of tort law and answers the question as to whether this understanding can contribute to contemporary tendencies in tort law theory.

Misfeasance in a Public Office: A Tort Law Misfit?

This article explores the peculiarities of the tort of misfeasance in a public office from the perspective of two popular, contemporary theories of tort law: the rights-based theory of Robert Stevens, and the corrective justice theory of Ernest Weinrib. It identifies four significant problems of fit for these theories: viz, the fact that this tort does not protect a clearly defined private law right; the fact that its touchstones of liability include concepts that are highly unusual in tort law (such as malice, recklessness and bad faith); the fact that it confounds the private/public law dichotomy envisaged by both authors, and the fact that it is both animated by, and makes ready use of, public policy considerations. It is nonetheless argued that these apparent oddities are not unique to this tort (each featuring elsewhere in tort law) and that, therefore, misfeasance in a public office is by no means as anomalous as these theories would lead us to believe. Having established that it is not a theoretical anomaly, the article goes on to suggest that this tort also serves a discrete and vital role in holding public officers to account thus rendering implausible any suggestion that it has very little to commend it in practical terms, or that it ought to be abolished.

Civil Recourse and Separation of Wrongs and Remedies

In developing their Civil Recourse theory of tort law, John Goldberg and Benjamin Zipursky seek to separate Civil Recourse from Corrective Justice by showing that tort law does not work in the ways in which corrective justice theory says that it must. The strategy of separation, in turn, rests on a separation between wrongs and remedies, a separation between ideas of risk and ideas of ordinariness, a separation between abstract characterizations of rights and contingent social norms, and, finally, a separation between a wrong done against the plaintiff and her power to exact a remedy. I argue that none of these separations can be made.

Duty in Tort Law: An Economic Approach

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several functions, but one important class encourages or subsidizes activities that carry substantial external benefits. Another class of duty-relieving doctrines serves as complements to property rules. Still another class of duty-relieving doctrines serves to permit markets to function without distortions created by liability.

Property Rules and Defensive Conduct in Tort Law Theory

What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine? To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide a positive theory of defense-related doctrines in tort law.

Tort Law and the Inherent Limitations of Monetary Exchange: Property Rules, Liability Rules, and the Negligence Rule

Legal scholars have extensively analyzed legal entitlements in terms of more fundamental component parts, most notably with the remedial structures entailed by property and liability rules. Contrary to the claim made by some scholars, I argue that the negligence entitlement is not fully constituted by a property rule, liability rule, or any combination thereof. The entitlement that generates the negligence rule, though partially constituted by both property and liability rules, is best described as a behavioral rule that obligates duty-holders to exercise reasonable care. The breach of this primary duty creates a second-order duty to pay compensation for the proximately caused physical harms, but the payment of compensatory damages does not fully exhaust or satisfy the underlying entitlement. This component of the entitlement explains why duty-holders are subject to punitive damages and perhaps even criminal negligence liability if they choose to act unreasonably in exchange for the payment of compensatory damages. The entitlement takes this form due to the inherent inadequacy of the compensatory damages remedy, an inadequacy that is most pronounced in cases of wrongful death but applies more generally to many instances of physical harm. The article concludes by identifying the distinctive features of the negligence entitlement that must be accounted for by any normative theory seeking to adequately explain tort liability, a condition that is not satisfied by prominent interpretations of tort law, including leading accounts based on the fault principle, pluralism, allocative efficiency, and corrective justice. The underlying rationale for tort liability cannot be derived from a structural (non-normative) analysis of entitlements, but the entitlement structure of the negligence rule still has important implications for the normative theory of tort law.

Toward a General Theory of Tort Law: Strict Liability in Context

In this extensive article I revisit my earlier writings from the 1970s that deal with tort liability in both stranger and consensual arrangements. On the former, I examine Stephen Perry’s 1988 critique of my work, and more recent contributions by Joshua Getzler and Benjamin Zipursky, to defend the view that a rigorous conception of causation under a theory of strict liability is neither logically impossible nor practically unworkable. In so doing, I reexamine the earlier efforts by writers such as Joseph Beale and H.L.A. Hart and Tony Honoré on causation in order to show how some controversial moves within their theories can be clarified without having to resort to the standard views of causation that work off the notion of “but for” causes. In addition, I explain, in connection with the critique of Jill Horwitz, why some form of a negligence system remains appropriate for medical malpractice cases. In these consensual cases, doctrines of charitable immunity for nonprofit institutions often removed the need to investigate the basis of liability. But once those were removed, a contractual system, which in practice would never embrace a strict liability rule, would often turn to some form of negligence, often coupled with institutional changes, such as arbitration and explicit limitations on contractual damages.

The Use of Functional Neuroimaging Technology in the Assessment of Loss and Damages in Tort Law

A central question within the theory of tort law is what sort of losses count for the purposes of tort action. While infractions against one's body or property provide obvious losses and evidence o...

Economic Analysis in a Unified Conception of Tort Law

Author(s): Geistfeld, Mark | Abstract: The controversy regarding the appropriate purpose of tort law continues to rage. Some advocate that tort rules should minimize accident costs as an instrument for maximizing social welfare and wealth. Others argue that as a matter of corrective justice, tort rules should fairly protect the individual right to physical security. These two conceptions of tort law are fundamentally incompatible and mutually exclusive. It would seem, then, that the tort system must choose between efficiency and fairness. This article establishes the possibility of a unified conception of tort liability, one capable of fully accounting for the central tenets of welfare economics and the fair protection of individual rights. The unified conception incorporates economic analysis into a fair theory of tort law. Under this approach, the individual right to physical security constrains the ability of the tort system to promote social welfare. The constraint yields rights-based tort rules that are consistent with the Pareto principle and satisfy the equity-efficiency criterion, the two central tenets of welfare economics. The approach is illustrated by a rights-based conception of fairness that adequately describes the important tort doctrines while unifying the compensation and deterrence functions of tort law. As this example illustrates, the constraint imposed by a rights-based principle does not make welfare considerations irrelevant. It merely defines the conditions under which tort rules can appropriately rely upon welfare considerations. Further analysis shows why any rights-based tort system is likely to provide an important role for economic analysis, one that operates within the constrained space of welfare concerns. The economic inquiry no longer exclusively focuses on the minimization of costs. Freed from such a limited and controversial role, economic analysis becomes integral to a unified conception of tort law.

The Externality of Victim Care

This essay identifies a flaw in the model currently employed to evaluate the economic consequences of common law liability rules in a joint care setting. The conventional model, it is shown, does not account for the externality of victim care, that is, the cost of victim care induced by injurer activity in a joint care setting. Recognition of this externality has important implications. In particular, the article demonstrates that neither negligence nor strict liability with a defense of contributory negligence will cause injurers to internalize the externality of victim care. Thus, neither liability rule will induce optimal injurer activity, even in those instances in which joint due care eliminates accident risk. Absent imposition of a Pigouvian tax, neither regime will induce efficient activity choices by the injuring party. Identification of the externality of victim care suggests the existence of a second externality, the externality of injurer care. Neither negligence nor strict liability with a defense of contributory negligence will cause victims to internalize this cost when making activity choices. Absent imposition of a Pigouvian tax, even a negligence regime will not induce optimal activity choices by the victim. The essay also offers some observations about the source of the oversight identified here as well as the implications of that oversight for the positive economic theory of tort law. The failure previously to identify the externality of victim care may reflect undue reliance on the farmer-railroad exemplar as a vehicle for examining the effects of various liability rules. Restrictive assumptions associated with this example, it is shown, inadvertently conceal the externality of victim care and produce conclusions that are not generalizable. Relaxation of these assumptions reveals this externality and allows construction of a model that can produce generalizable conclusions. Moreover, recognition of this externality may actually bolster the positive economic theory by, for instance, explaining the absence of a contributory negligence defense to torts premised on strict liability.

Aristotle and Posner on Corrective Justice: The Tortoise and the Hare

Abstract:This paper examines judge Richard A. Posner’s “The Concept of Corrective Justice in Recent Theories of Tort Law,” as well as a restatement of that position in The Problems of Jurisprudence, and argues that Judge Posner has mistakenly claimed Aristotle’s notion of corrective justice as a significant component of the economic theory of law.

Aristotle and Posner on Corrective Justice

This paper examines judge Richard A. Posner’s “The Concept of Corrective Justice in Recent Theories of Tort Law,” as well as a restatement of that position in The Problems of Jurisprudence, and argues that Judge Posner has mistakenly claimed Aristotle’s notion of corrective justice as a significant component of the economic theory of law.

“Law and Neoclassical Economics”: A Response to Commentaries

I first want to thank all of the commentators for their insights on, and criticisms of, my article, as well as thank the editors of Law and History Review for the opportunity to respond. Rather than addressing each comment individually, I will structure my response along conceptual issues raised by all three, although the three comments each have different emphases. The two conceptual categories I use are “technical criticisms” and “historiographical criticisms.” Under the category of technical, I include criticisms of my characterization of neoclassical economics theory and my analysis of particular texts. The historiographical category encompasses substantive historical issues, including which authors should be included in my accounting of law and neo-classical economics as it relates to the reconfiguration of tort law theory. However, it also touches upon broader methodological issues of how one goes about doing intellectual history(ies).