Seeing tort law from the internal point of view: Holmes and hart on legal duties

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1563-1591

  Goldberg, John C P ^a   Zipursky, Benjamin C ^b  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

^b FORDHAM UNIVERSITY   (United States)

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EID: 33846591830     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (98)

1. See Nicholas J. McBride, Duties of Care-Do They Really Exist?, 24 O.J.L.S. 417 (2004). McBride describes the divide as between "cynics" and "idealists." Id. at 418-19. We refrain from adopting his terminology in part because, in our view, the label "idealists" only aids duty skepticism by linking duty acceptance to overly moralistic, squishy, and esoteric ways of thinking. Likewise, we have qualms about defining the issue at hand as whether duties "really exist," given that this sort of locution tends to link duty acceptance to strong metaphysical claims about which duty skeptics are justifiably skeptical.
2. See John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733, 1745-66, 1799-1846 (1998) (discussing and responding to duty skeptics' deconstruction of the duty element of negligence).
3. See generally Dale A. Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral, 83 Va. L. Rev. 837 (1997) (contrasting liability-rule and guidance-rule conceptions of law).
4. See, e.g., Robert Cooter, The Intrinsic Value of Obeying a Law: Economic Analysis of the Internal Viewpoint, 75 Fordham L. Rev. 1275 (2006).
5. See generally Oliver Wendell Holmes, Jr., The Common Law (Little, Brown, & Co. 1945) (1881) [hereinafter Holmes, The Common Law];
6. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897) [hereinafter Holmes, Path of the Law].
7. See generally H.L.A. Hart, The Concept of Law (2d ed. 1994). Hart, of course, self-identified as a legal positivist who was attempting to improve upon what he took to be cruder versions of positivism offered by the likes of Austin and Holmes. For what it is worth, we do not think of ourselves as positivists, in part because we do not believe that one needs to subscribe to legal positivism in order to treat law as a partly autonomous realm of powers, rights, privileges, and duties.
8. See Thomas C. Grey, Accidental Torts, 54 Vand. L. Rev. 1225 (2001).
9. See generally The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. (Steven J. Burton ed., 2000) (essays on Holmes's jurisprudence).
10. See John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, Tort Law: Responsibilities and Redress, at app. A (2004).
11. See John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 531-59 (2005). Private wrongs were also referred to as "civil injuries," where the term "injuries" was understood to refer to mistreatments or wrongings, as opposed simply to setbacks or losses. Id. at 542-43.
12. Id. at 545-51.
13. Id.
14. See Holmes, Path of the Law, supra note 5, at 459.
15. Id. at 461.
16. Id. at 94-95, 111 (emphasizing that tort law must give notice and the opportunity for choice to those subject to it).
17. 1 John Austin, Lectures on Jurisprudence §§ 577-95, at 278-84 (Robert Campbell ed., London, John Murray 3d ed. 1869) (1861). The ensuing account of Austin and Holmes draws from John C.P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DePaul L. Rev. 435, 463-65 (2006).
18. See 1 Austin, supra note 16, § 722, at 360.
19. See Goldberg & Zipursky, supra note 2, at 1752-56 (discussing Holmes's conception of tort duties).
20. See Holmes, The Common Law, supra note 5, at 144 ("[T]he general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms.");
21. see also id. at 149.
22. See Holmes, Path of the Law, supra note 5, at 462.
23. Goldberg & Zipursky, supra note 2, at 1756.
24. Holmes, The Common Law, supra note 5, at 81-82.
25. Id. at 53. Holmes sometimes backed off the strongest versions of this claim. He acknowledged, for example, that tort law sometimes treats the presence or absence of certain subjective mental states such as "malice" as critical to the determination of whether an actor will be sanctioned.
26. See Oliver Wendell Holmes, Jr., Privilege, Malice, and Intent, 8 Harv. L. Rev. 1, 2 (1894). Despite relenting on the idea that the entire common law had settled on a single liability standard, Holmes clung to the notion that one could see in tort law a "tendency" toward the realization of a "general theory" of liability for acts that cause harm under circumstances where the risk of harm was or should have been manifest to the actor. Holmes, Path of the Law, supra note 5, at 471.
27. Holmes, The Common Law, supra note 5, at 107-09.
28. Id. at 79.
29. See Goldberg & Zipursky, supra note 2, at 1756.
30. Holmes, The Common Law, supra note 5, at 46.
31. Id. at 79;
32. see also id. at 96, 144.
33. It is possible that, by making tortfeasors indemnify victims, the state would reduce the incidence of tortious conduct. But Holmes did not explain or defend tort law as an incentive scheme of this sort. Rather, he treated it as a system for allocating losses as between an innocent victim and an actor who had taken more than his fair share of liberty (where "fairness" was determined by the standards of conduct set out by judicial decisions in negligence cases).
34. See id. at 111.
35. This is ironic because Holmes himself did not link his thoughts on law to progressivism. See Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes 19-30 (2000) (emphasizing "Nietzschean" aspects of Holmes's thought);
36. Grant Gilmore, The Ages of American law 48-49 (1977) (arguing that the image of Holmes as a progressive, sometimes associated with his Lochner dissent, is false).
37. See John C.P. Goldberg, Misconduct, Misfortune and Just Compensation: Weinstein on Torts, 97 Colum. L. Rev. 2034, 2045-49 (1997) (discussing how Fleming James adopted and inverted Holmesian tort theory);
38. Goldberg & Zipursky, supra note 2, at 1756-66 (describing Prosser's elaboration of Holmes's framework). That later Holmesians were more politically progressive explains why they, and not Holmes, were keen to disparage the older conception of tort as a law of wrongs on political as well as jurisprudential grounds. Specifically, they, unlike Holmes, saw an unholy connection between conceiving of tort law as a law of private wrongs and laissez-faire politics.
39. See, e.g., Goldberg & Zipursky, supra note 2, at 1760-61.
40. On Holmes's relatively narrow, formalistic conception of the judge's role, see Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 Wm. & Mary L. Rev. 19, 28, 32 (1995).
41. See Goldberg & Zipursky, supra note 2, at 1762-66 (describing Prosser's conception of judicial reasoning about duty questions as policy making). Holmes was not unaware or disapproving of this conception of the judicial role, but he seems to have been of the view-surely common in his time-that judges could not (and perhaps should not) be expected to operate self-consciously as policy makers.
42. See Holmes, supra note 23, at 3 (noting that judges invoke policy considerations to limit liability but are reluctant to admit they are doing so). With the subsequent rise of the administrative state and, still later, Warren Court conceptions of public-law adjudication, Holmesian scholars, many of whom were or are more sympathetic to expansive government regulation than was Holmes himself, have tended to cast courts on the model of mini-legislatures or agencies. Of course, they conceded that courts suffer from significant drawbacks as lawmakers. Most obviously, they are not able to engage in de novo legislation or formal rulemaking, nor can they act sua sponte or purely prospectively. Instead, they are ordinarily limited to ordering a person or entity (or small group) to pay another person or entity (or other persons and entities) in light of past actions. Given these limits on the power delegated to courts, later Holmesians have supposed that the most plausible "regulatory" assignment government can give to courts presiding over tort cases is that of contributing to the deterrence of undesirable (antisocial) conduct and/or to the compensation of persons who have suffered undeserved losses. In this view, courts might be thought of as "ministries for deterrence and compensation," with tort plaintiffs cast as "bounty hunters" who are authorized to sue by the law in the service of these policy goals. John C.P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 522-29 (2003) (describing basic tenets of Holmesian compensation-deterrence theory).
43. See Goldberg & Zipursky, supra note 2, at 1762-66. Although Holmes was keen to apply cynical acid to the concepts of legal right and legal duty, his cynicism was in retrospect rather selective. (Is this not always the case when cynics are viewed in hindsight?) In particular, he seemed quite prepared to take at face value concepts such as foreseeability, reasonableness, and causation that later Holmesians have sought to deconstruct on terms comparable to his deconstruction of right and duty. For example, no less mainstream a source than the American Law Institute now tells us that foreseeability is a vacuous concept, and therefore cannot (as Holmes himself had supposed) provide a ground for setting a meaningful limit on liability. See Restatement (Third) of Torts: Liability for Physical Harm § 7, reporters' note to cmt. j, at 110 (Proposed Final Draft No. 1, 2005). Likewise, William Landes and Richard Posner have declared that causation means whatever it needs to mean to render tort law a scheme of efficient deterrence.
44. See William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 229-30 (1987).
45. Hart, supra note 6, at 84.
46. Id. at 10-11.
47. Id. at 82.
48. Id. at 83.
49. Id. at 91.
50. Id. at 86.
51. Id. at 87.
52. Id.
53. Id. at 89-91.
54. See supra text accompanying notes 9-12.
55. A standard appellate opinion affirming a judgment for the plaintiff in a negligence case might read (in artificially condensed form) as follows: The defendant owed the plaintiff a duty to take reasonable care against causing her physical harm. The jury found, and was entitled to find, that the defendant breached that duty, and that the breach caused harm to the plaintiff of the sort that the defendant was duty-bound to take care against causing. Therefore, the plaintiff was entitled to compensation from the defendant for the injury done to her. Now imagine the same opinion written in the language of modern Holmesian tort theory: We, the members of the ministry of deterrence and compensation (MDC), must consider whether to assess the undesired conduct fee (UCF) on subject (S), who has been brought to our attention by notifying citizen (N). We determine that S's conduct is the sort to which the fee attaches. Because the government desires to induce citizens to notify the MDC of undesired conduct so that such conduct might be deterred, and because the government wishes to provide monetary assistance to those who have experienced certain misfortunes, the UCF is payable only if, as is the case here, the notifying person establishes a nontrivial possibility of some connection between the undesired conduct and a setback experienced by the notifying person. Having established this possibility, N is entitled to recoup the UCF, owed in the first instance to the MDC, which is set at an amount equal to the value of the setback suffered by N. The MDC will grant ad hoc exemptions from the UCF to advance other worthy policy goals or to prevent the fee system from working an injustice. However, it finds no basis for granting an exemption here. The point of this obviously stylized contrast is to suggest, as have others, that, while the vocabulary of tort law is not God-given or sacrosanct, neither is it a collection of empty labels waiting to be filled with whatever content commentators wish to pour into it. See, e.g., Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 13-24 (2001) (arguing that certain versions of economic analysis of tort law are interpretively impoverished for not being able to make sense of the language of the practice of tort law);
56. Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457, 457-66, 470-80, 483-85 (2000) (arguing the same).
57. See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935) (arguing that the deconstruction of legal concepts is the necessary first step toward an enlightened and scientific approach to the law). We do not mean to take a position on whether a reductionist approach to legal concepts is a hallmark of Legal Realism in all its many variants. It is clearly a prominent feature in the work of some Realists, including Cohen.
58. Holmes, Path of the Law, supra note 5, at 469.
59. See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 596-97 (1958).
60. William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953) ("There is a duty if the court says there is a duty; the law [of negligence], like the Constitution, is what we make it.").
61. Hart, supra note 6, at 141-47.
62. See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 Va. L. Rev. 1625 (2002) (using pragmatic and conceptualistic tort theory to clarify doctrine regarding liability for exposure-only victim cases).
63. John C.P. Goldberg, What Are We Reforming?: Tort Theory's Place in Debates over Malpractice Reform, 59 Vand. L. Rev. 1075 (2006).
64. See Goldberg, supra note 10; Benjamin C. Zipursky, The Philosophy of Private Law, in The Oxford Handbook of Jurisprudence & Philosophy of Law 623 (Jules Coleman & Scott J. Shapiro eds., 2002).
65. Although Hart was not a tort theorist, he once sketched a picture of tort law that is quite compatible with the foregoing, perhaps adding some credence to our claiming of his mantle in this area. See H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 183-85 (1982).
66. See generally Ernest J. Weinrib, The Idea of Private Law (1994).
67. For a rich mediation on the interrelated ideas of settling accounts, getting even, and doing justice, see William Ian Miller, Eye for an Eye 1-30 (2006). As Miller points out, there is a natural linkage between the notion of enabling a victim to get even with a wrongdoer and the notion of restoring harmony, peace, or balance. Id. at 15-16. Still, there is no particular reason to equate the restoration of civil order with the restoration of the status quo ante-victims' legitimate demands for satisfaction or vindication may require (or at least permit) the law to offer them something more (or different) than a return to the pre-tort state of affairs.
68. But see John Gardner, Wrongs and Faults, 59 Rev. of Metaphysics 95 (2005) (arguing powerfully that it is cogent to identify moral wrongs that are wrong simply by virtue of being breaches of duties, not because they involve wrongful conduct).
69. See John C.P. Goldberg & Benjamin C. Zipursky, Tort Law and Moral Luck, 92 Cornell L. Rev. (forthcoming 2007) (defending the objectivity of the legal standard for fault within a wrongs-based conception of tort).
70. See generally Goldberg & Zipursky, supra note 2; John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657 (2001).
71. See W.W. Bucldand, The Duty to Take Care, 51 Law Q. Rev. 637, 639 (1935);
72. Percy H. Winfield, Duty in Tortious Negligence, 34 Colum. L. Rev. 41, 43 (1934).
73. Goldberg & Zipursky, supra note 61, at 658-74.
74. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 103 (N.Y. 1928) (Andrews, J., dissenting).
75. See generally Goldberg & Zipursky, supra note 60, at 692-736 (discussing and criticizing the Restatements embrace of duty skepticism).
76. See generally Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1 (1998) (identifying various aspects of tort doctrine that are difficult to explain absent a relational conception of duty).
77. Goldberg & Zipursky, supra note 60, at 705-09. It may be true, as Jane Stapleton points out in her Symposium paper, that some courts will be less likely to recognize appropriately broad orbits of duty if they are invited to take a relational view.
78. See Jane Stapleton, Evaluating Goldberg and Zipursky's Civil Recourse Theory, 75 Fordham L. Rev. 1529 (2006). This does not strike us as a powerful objection to the views we have articulated. The central point of our first coauthored article is that it is simply a fallacy to link the idea of relational duty with narrow or regressive duty doctrines.
79. See Goldberg & Zipursky, supra note 2, at 1799-1811 (arguing that modern duty skepticism in tort law is born of a false conceptual linkage of duty acceptance to laissez-faire). More generally, we have taken pains in our work to explain just what is or is not entailed by the adoption of a relational conception of duty-including how a relational conception can and has actually incorporated a certain conception of a general or universal duty, and how a well-drafted Restatement could help judges avoid misapplying duty doctrine.
80. See Goldberg & Zipursky, supra note 60, at 698-720, 737-50.
81. (1883) 11 Q.B.D. 503 (A.C.) (appeal taken from Eng.) (U.K).
82. See Goldberg & Zipursky, supra note 2, at 1812-25.
83. Austin, supra note 16.
84. See St. Thomas Aquinas, Summa Theologiae (Fathers of the English Dominican Provice, trans., Christian Classics Press 1981) (n.d.).
85. Hart, supra note 6, at 155-57.
86. In other writings, we have offered explanations as to why tort law sets fairly tight limitations on liability for nonfeasance and emotional harm-the under-inclusive side of tort obligations relative to moral obligations. See, e.g., Goldberg & Zipursky, supra note 2, at 1799-1811;
87. Goldberg & Zipursky, supra note 52, at 1672-94. We have also offered explanations for the objectivity of breach and the significance of rights-based forms of strict liability such as those found in trespass law-the over-inclusive side of tort obligations relative to moral obligations.
88. See Goldberg & Zipursky, supra note 60. It may be that a small subsection of the domain of cases commonly treated as strict liability cases-namely those involving abnormally dangerous activities and wild animals-are instances in which tort law functions as a scheme of liability rules (or as Keeton-esque "conditional duties"). The same is not true for other areas of tort law that are sometimes deemed to be areas of strict liability such as trespass, conversion, and nuisance.
89. See generally Coleman, supra note 46 (explaining incorporationism and inclusive positivism).
90. See Ronald Dworkin, Taking Rights Seriously (2d ed. 1977);
91. Joseph Raz, Legal Principles and the Limits of Law, 81 Yale L.J. 823 (1972).
92. See, e.g., Goldberg & Zipursky, supra note 2;
93. Goldberg & Zipursky, supra note 52;
94. Zipursky, supra note 46.
95. See Hart, supra note 6, at 97.
96. See id. at 39-42 (identifying and responding to this sort of objection as to criminal law).
97. See supra note 60 (citing other writings).
98. See John C.P. Goldberg & Benjamin C. Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other "Quaint" Doctrines Can Improve Judicial Decisionmaking in Negligence Cases, 79 S. Cal. L. Rev. 329, 329-35 (2006) (outlining California's approach to duty).