Tort law and moral luck

Cornell Law Review

Volumn 92, Issue 6, 2007, Pages 1123-1175

  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: 35549001869     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (187)

1. BLACK'S LAW DICTIONARY 1526 (8th ed. 2004). The Latin root of "tort" refers to conduct that is twisted (i.e., lacking in rectitude) while also twisting (i.e., interfering with the rights of others).
2. JOHN C. P. GOLDBERG, ANTHONY J. SEBOK & BENJAMIN C. ZIPURSKY, TORT LAW: RESPONSIBILITIES AND REDRESS 3 (2004).
3. 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, 541-51 (2005). Medieval English law referred to torts as "trespasses," using the term in its biblical sense to refer to transgressions by one against another. See GOLDBERG ET AL., supra note 1, at 47 (discussing actions for trespass and trespass on the case).
4. For example, many arguments that can defeat a tort action do so by establishing that the defendant's conduct was not a wrong or not a wrong to the plaintiff. A good example is consent; victim consent renders conduct that would otherwise be tortious nonwrongful. See, e.g., Florida Publ'g Co. v. Fletcher, 340 So.2d 914, 916 (Fla. 1976) (stating that consent is a defense to an action for trespass); Duncan v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003) ("A battery claim is defeated, however, when consent is given."). Similarly, a shopkeeper's detention of a suspected shoplifter based on reasonable suspicion of theft is deemed privileged and therefore not a wrong. See, e.g., Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 372 (Tex. 2004). In asserting any of these and various other defenses, a defendant is claiming that conduct that would otherwise be wrongful is nonwrongful, or at least not a wrong to the plaintiff.
5. OLIVER W. HOLMES, JR., THE COMMON LAW 108 (48th prtg. 1923).
6. Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 31-32 (1972) (footnote omitted).
7. Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 387, 387-88 (David G. Owen ed., 1995).
8. Christopher H. Schroeder, Causation, Compensation, and Moral Responsibility, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 6, at 347, 361.
9. See Thomas Nagel, Moral Luck, PROC. OF THE ARISTOTELIAN SOC'Y (Supp. L 1976),
10. reprinted in MORTAL QUESTIONS 24-38 (Thomas Nagel ed., 1979);
11. Bernard Williams, Moral Luck, PROC. OF THE ARISTOTELIAN SOC'Y 115-35 (Supp. L 1976),
12. reprinted in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20-39 (Bernard Williams ed., 1981). Both book chapters are revisions of essays bearing the same tides. See Nagel, supra, at 28 n.3; Williams, supra, at xiii. Nagel's essay was penned as a response to Williams's, with the latter generally credited with having coined the phrase. See Nagel, supra, at 28 n.3. We are hardly alone in linking these issues to the work of Nagel and Williams.
13. See, e.g., Basil A. Umari, Note, Is Tort Law Indifferent to Moral Luck?, 78 TEX. L. REV. 467, 467 (1999) (noting that the imposition of tort liability under current doctrine will sometimes necessarily turn on luck and connecting the problems thereby raised to the work of Williams and Nagel).
14. See Nagel, supra note 8, at 33; Williams, supra note 8, at 37-39.
15. See Nagel, supra note 8, at 38; Williams, supra note 8, at 37-39.
16. As this clause suggests, we agree with the likes of Holmes and Posner in supposing that, as used in tort law, concepts like wrong and wrongdoing carry meanings that render them distinct from their counterparts in certain forms of moral discourse. We part company with them in rejecting the claim that these differences are radical, as opposed to subtle. As we explain below, the legal wrongs of tort are close cousins of moral wrongs. Thus, we maintain that one can think of tort law as a law of wrongs without distorting its substance, and indeed, that appreciating the sense in which tort is a law of wrongs is critical to understanding it. See infra text accompanying notes 91-135.
17. Our concern in this Article is the significance of two much-discussed forms of luck - causal and compliance luck - for holding actors responsible in tort. We will not address or address only in passing various other forms of luck that matter to the operation of the tort system. Obviously, "luck" also operates on the victim's side of the equation, if only in the sense that it is the innocent victim's bad luck to be injured by another. Some will suppose that an appreciation of the centrality of victim misfortune to tort law supports the normative proposition that tort ought to be replaced with a social safety net that, in providing a general form of disaster insurance, promises to do a better job of aiding victims in overcoming bouts of bad luck. Briefly, we regard this sort of position as resting on a non sequitur: it is desirable to provide individuals with a safety net, but that still leaves the question of whether we might also want a body of law that permits the subset of unfortunate victims whose misfortunes are caused by the wrongful acts of others to seek redress against those others. Along somewhat different lines, a number of prominent tort theorists have argued (more in an interpretive than prescriptive vein) that the very point of tort law is to set rules for determining which among all the setbacks suffered by innocent victims are another person's responsibility and which are simply misfortunes that the victim herself must bear. See infra text accompanying notes 137-64.
18. See Nagel, supra note 8, at 24-25; Williams, supra note 8, at 20.
19. See Nagel, supra note 8, at 24-25.
20. See id. at 28 (distinguishing among these different forms of luck).
21. IT'S A WONDERFUL LIFE (RKO Radio Pictures 1946).
22. For example, a licensing authority could have issued a fine or required professional recertification.
23. Although this episode mainly illustrates the causal luck version of moral luck, it also might be seen to present the problems of circumstantial luck (but for living amidst an influenza epidemic, Gower never would have lost his son and never would have been rendered distraught) and constitutive luck (but for his being blessed with a stronger constitution, Gower would not have coped with his devastation by drinking on the job to the point of substantial intoxication). Gower's story is not a perfect example of causal luck because in the first scenario, George, on a vow to Gower, never tells anyone of Gower's mistake. Hence, we never learn how Gower's townfolk would have assessed his conduct. A clue is provided, however, in the fact of earnest George's vow, which suggests that the mistake was not sufficiendy grave in his mind to require him to expose it. By contrast, it is hard to imagine George making the same vow if Gower's mistake actually poisoned the child. On this basis, we can perhaps assume that even if the good citizens of Bedford Falls had somehow learned of the first version of Gower's mistake, they would not have seen fit - and their law would not have permitted them - to send the druggist to jail for twenty years.
24. For thoughtful analyses of various aspects of Williams's and Nagel's articles, see MORAL LUCK (Daniel Statman ed., 1993).
25. Williams, supra note 8, at 20 & n.1 (citing Kant's work in connection with his description of a view of moral evaluation that seeks to exclude the influence of contingencies). We do not take a position on whether Kant himself was committed to a conception of morality that called for the exclusion of contingencies in moral assessment. See, e.g., John Gardner, The Wrongdoing that Gets Results, 18 PHIL. PERSP. 53, 66 (2004) (arguing that it is a mistake to attribute to Kant the aspiration to render morality an entirely "luck-free zone.")
26. See Nagel, supra note 8, at 35 (arguing that because choices and acts are themselves influenced by contingencies about the actor and his or her circumstances, luck cannot be fully removed from moral assessment without the adoption of a deterministic account of human behavior that is incompatible with treating acts and choices as genuinely volitional).
27. John Gardner argues on independent grounds that what we have labeled "(a)" in the text is false. As just mentioned, supra note 20, he maintains that Nagel and others have overstated in important ways the degree to which Kant's moral theory sought to divorce assessments of the rectitude of actions from factors beyond an actor's control and, likewise, have overstated the breadth of the principle that "ought" implies "can" to which Kant adhered. Nevertheless, he concludes that Kant did adhere to a version of the view that moral value is secured by trying to do the right thing, as opposed to succeeding in doing it, and that this view is insupportable. See Gardner, supra note 20, at 66-77. Of course, we do not necessarily mean to commit ourselves to the truth of (b) (at least in that broad form).
28. Nagel, supra note 8, at 29.
29. See supra text accompanying note 6.
30. For iterations of this argument in addition to Schroeder's and Waldron's, see GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 306 (1970);
31. Larry A. Alexander, Causation and Corrective Justice: Does Tort Law Make Sense?, 6 L. & PHIL. 1, 12-17 (1987);
32. and Ronen Avraham & Issa Kohler-Hausmann, Accident Law for Egalitarians, 12 LEGAL THEORY 181, 181 (2006).
33. Waldron's critique is more cautious than this sentence might suggest because he denies that he is judging the intelligibility or fairness of tort liability by measuring it against principles underlying criminal punishment. See Waldron, supra note 6, at 390-91. Yet, as indicated below, his arguments are still vulnerable to the critique put forward here. Although he does not wish to characterize liability as punishment, Waldron nonetheless ignores the distinction between the state itself imposing a sanction, a fine, or liability, on the one hand, and the state empowering an individual to exact damages, on the other. A case of liability-imposition, in his view, is a case in which the state orders that the victim's loss be shifted to the tortfeasor and not an instance of the state authorizing the victim to seek redress. Admittedly, Waldron at one point acknowledges that some theorists emphasize that tort is about holding a defendant responsible to the plaintiff for having wrongfully injured the plaintiff. See id. at 399. But with one peculiar hypothetical involving multiple careless drivers - an example that probably should be analyzed as an instance of joint liability on a concert-of-action theory - he dismisses the possibility of harnessing causation and the realization of harm to flesh out a cogent conception of a law that holds tortfeasors responsible for having wrongfully injured victims. Id. at 399-400. Finally, while Waldron's critique focuses less on the incoherence of tort law and more on its supposed unfairness, he does not anticipate how tort law can be understood to instantiate values that cohere with many of our legal and political system's basic normative commitments, including the recognition of core individual rights, by standing ready to provide each citizen with a power to seek redress in the event she is wronged. See Goldberg, supra note 2, at 596-611. Moreover, he dismisses too hastily the mechanisms that ameliorate the unfairness in tort law. See Waldron, supra note 6, at 388-89. These include mandatory liability insurance for automobile owners, a broad delegation to juries on the issue of the quantum of damages that may be fairly awarded, and a broad array of settlement practices largely keyed to available insurance coverage. See Tom Baker, Liability Insurance, Moral Luck, and Auto Accidents, 9 THEORETICAL INQUIRIES L. (forthcoming Jan. 2008) (explaining how insurance law systematically ameliorates the apparent harshness displayed by Waldron's examples).
34. See Arthur Ripstein & Benjamin C. Zipursky, Corrective Justice in an Age of Mass Torts, in PHILOSOPHY AND THE LAW OF TORTS 214, 222-23, 225 (Gerald J. Postema ed., 2001) (emphasizing the distinction between tort liability and punishment).
35. Others have emphasized (as have we in earlier writings) that, in both law and morality, responsibility to a victim is a special form of responsibility, distinguishable from responsibility to the state or to persons who stand in some other relation to wrongdoing. See, e.g., CHRISTOPHER KUTZ, COMPLICITY: ETHICS AND LAW FOR A COLLECTIVE AGE 20-22 (2000) (noting that moral norms, like norms of etiquette, are often "positional" in the sense that those more immediately affected by norm violations are generally thought warranted in having a different sort of reaction than, say, bystanders);
36. JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 146 (rev. ed. 1990) (in contrast to crimes, "there are no torts without victims and their losses");
37. JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 21 (1988) (distinguishing forgiveness from mercy in part on the ground that only a victim has standing to forgive an offense insofar as it is a wronging of her).
38. See KUTZ, supra note 28, at 20-25 (discussing "warranted" responses to inappropriate conduct).
39. John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA. L. REV. 1625, 1636-60 (2002) (arguing that tort does not permit recovery absent injury).
40. These are precisely the terms by which tort was distinguished from crime by Locke, Blackstone, and many subsequent eighteenth and nineteenth century jurists, as well as by the likes of Cardozo. Goldberg, supra note 2, at 541-51. Professor Weinrib has made a similar point in referring to the inherent "bipolarity" of tort liability as a form of corrective justice. ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 155-56 (1995). Although our account of tort shares Weinrib's emphasis on relational wrongs and their rectification, it does not advance a corrective justice theory of tort and does not mount an argument derived from Aristotlean and Kantian theory.
41. Needless to say, it has been popular among twentieth and twenty-first century theorists to treat tort law as if it were law by which the state harnesses private lawsuits to achieve public policy goals such as deterrence or loss spreading. We have criticized such theories as interpretively deficient elsewhere. See, e.g., John C.P. Goldberg & Benjamin Zipursky, Accidents of the Great Society, 64 MD. L. REV. 364, 384-408 (2005) (criticizing Calabresi's effort to reduce the aspiration of tort law to the goal of accident cost minimization);
42. John C.P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 521-62 (2003) (discussing criticisms of various instrumentalist theories of tort).
43. And, of course, the Supreme Court has on occasion deemed the enforcement of tort judgments to be state action for purposes of constitutional law. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 573 n.17 (1996); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
44. See Benjamin C. Zipursky, Philosophy of Private Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 623, 632-36, 49-51 (Jules Coleman & Scott Shapiro eds., 2002).
45. Id.
46. Injuring in this sense means, roughly, one person depriving another of rights by virtue of conduct that amounts to wrongful interference with a basic interest.
47. Assume, for example, D is driving recklessly in pedestrian P's presence, and that P is intensely annoyed, but does not fear for his physical well-being. P has suffered an adverse effect because of D's wrongful conduct as to him, but not the sort of adverse effect that counts as an injury in the eyes of the law.
48. The idea of relationality, expressed through the notion of "substantive standing," is first articulated in Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 3-5 (1998). Various writings have subsequently developed and deployed this concept.
49. See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733, 1812-32 (1998).
50. See Zipursky, supra note 37, at 17-18.
51. Id.
52. See id. at 17 n.53.
53. RESTATEMENT (SECOND) OF TORTS § 158 (1965).
54. See, e.g., Lal v. CBS, Inc., 726 F.2d 97, 100 (3d Cir. 1984).
55. See id.
56. E.g., Banco Popular N. Am. v. Gandi, 876 A.2d 253, 260 (N.J. 2005). See John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, The Place of Reliance in Fraud, 48 ARIZ. L. REV. 1001, 1011 (2006); Zipursky, supra note 37, at 18-20.
57. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99 (N.Y. 1928) ("Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right."); Zipursky, supra note 37, at 7-15, 27.
58. See Goldberg & Zipursky, supra note 30, at 1650-60.
59. We are assuming that P does not suffer physical harm, emotional distress, or property damage. The same holds true for unrealized risks. To take an illustration we have used before, suppose mall owner M is under a duty to take reasonable care to protect patrons from criminal activity on the premises and that M is presently failing to do the sorts of things that would fulfill that duty (e.g., providing adequate lighting or security guards in its parking lots). Even though M's breach exposes patrons to the heightened risk of a criminal attack, they have no basis for bringing a tort claim against M. Id. at 1651-52.
60. Ripstein & Zipursky, supra note 27, at 222-23.
61. Goldberg & Zipursky, supra note 30, at 1652-53.
62. Id. at 1654.
63. HOLMES, supra note 4, at 95.
64. For example, anyone who is momentarily inattentive during a drive through a residential neighborhood stands a decent chance of increasing the risk of physical harm to others and hence of committing a completed tort.
65. This is not to say that all law must do so. Often, criminal law and regulatory law deem risk creation to be offenses, and one can of course be cited for speeding without having harmed anyone. (Needless to say, there is a significant difference between the risk of a regulatory fine for speeding and the risk of paying thousands or millions of dollars in damages.) Our aim here is to adduce plausible reasons why the tort system, as a law of private wrongs and redress, does and should shy away from giving victims a right of action for damages against the wrongdoer merely for wrongful risk exposure.
66. See, e.g., Vosburg v. Putney, 50 N.W. 403, 404 (Wis. 1891).
67. Id.
68. See supra note 6 and accompanying text.
69. See supra Part I.A., II.A.
70. This claim needs to be qualified both as to punitive damages and as to tort theory more generally. (1) Punitive damages. In some cases, victims can request that the factfinder award punitive damages. Considerations of deterrence frequendy influence the size of that award. This is not to say, however, that the point of tort law or even of punitive damages is to deter certain forms of wrongdoing. See generally Benjamin C. Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105 (2005) (explaining punitive damages largely in terms of plaintiff's expanded right of individual redress, while recognizing respects in which some jurisdictions have invested punitive damages with a significant deterrent role). (2) Tort Theory more generally. We are of course aware that the law and economics approach to tort theory - arguably the dominant theoretical paradigm today - is based largely on the deterrence capacity of tort law. Suffice it to say that it is not our aim in this Article to address that approach; we have done so elsewhere. See, e.g., Goldberg & Zipursky, supra note 31; Goldberg & Zipursky, supra note 37; Zipursky, supra note 37.
71. U.S. CONST. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed . . . .").
72. Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263-64 (1989) ("[T]he Excessive Fines Clause . . . . does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.").
73. See James J. Heckman, The Intellectual Roots of the Law and Economics Movement, 15 LAW & HIST. REV. 327, 328-29 (1997). It is also why others, including Judge Posner, maintain that courts should award punitive damages on very different terms than they have historically - to make up for instances of "under-litigation" or under-regulation, as opposed to allowing victims of egregious wrongs a special form of redress. See Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676-77 (7th Cir. 2003).
74. This was perhaps the dominant rule in Anglo-American law for personal injury cases during the 1700s and into the mid-1800s. See John C.P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DEPAUL L. REV. 435, 442-43 (2006). It may still be the rule in many instances, given that jury instructions often direct jurors to assess compensation that is "reasonable" or "fair."
75. See, e.g., KEVIN F. O'MALLEY ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 128.01 (5th ed. 2000) (stating that the jury should "award plaintiff such sum as you believe will fairly and justly compensate plaintiff). Alternatively, it may be the de facto practice in many tort cases, given the jury's broad discretion to determine damages, at least for nonquantifiable losses.
76. This option was available to the victims of felonies in medieval English law. David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. REV. 59, 61-68 (1996).
77. For some tort victims, namely those wrongfully injured by judgment-proof tortfeasors, this sort of acknowledgment is about the only relief they stand to receive (minus the frame). That the legal system lets some tortfeasors escape liability in this way does not reflect a principle of tort law or damages law. Rather, it results from the availability of various asset-protection measures (e.g., the recognition of limited liability entities), bankruptcy law, and a lack of alternative remedies, such as the ancient-law remedy of impressing a tortfeasor into the victim's personal service. The fact that other bodies of law impinge on tort law's operation raises separate questions. In addition, we do not discuss here whether there are judicially enforceable constitutional limits on the ability of courts and legislatures to cap damages or otherwise eliminate or significantly curtail tort liability. See Goldberg, supra note 2, at 611-26.
78. See Goldberg, supra note 62, at 442, 455-62; see also Zipursky, supra note 58, at 151-55.
79. See supra text accompanying notes 4-5.
80. (1837) 132 Eng. Rep. 490 (C. P.).
81. Id. at 491.
82. Id.
83. See id. at 493.
84. See id.
85. HOLMES, supra note 4, at 108-09.
86. Mark F. Grady, Res Ipsa Loquitur and Compliance Error, 142 U. PA. L. REV. 887, 897-98 (1994).
87. See, e.g., James Goudkamp, The Spurious Relationship Between Moral Blameworthiness and Liability for Negligence, 28 MELB. U. L. REV. 343, 350-52, 355 (2004) (identifying doctrinal features of negligence law, such as the objective standard of care, that undercut the claim that liability for negligence is based on notions of moral blameworthiness).
88. See id.
89. See id.
90. See id.
91. See Nagel, supra note 8, at 28; supra note 15 and accompanying text (explaining the difference between these forms of luck).
92. Burns Philp Food, Inc. v. Cavalea Cont'l Freight, Inc., 135 F.3d 526, 529 (7th Cir. 1998) (applying Illinois law).
93. According to Holmes, this was precisely John Austin's mistake in characterizing torts as a law under which the sovereign punished moral wrongs by holding wrongdoers liable to their victims. HOLMES, supra note 4, at 107.
94. See id. at 79.
95. See generally Posner, supra note 5 (arguing that negligence law is set up to promote efficient expenditures to prevent injury).
96. See Guido Calabresi, The Decision for Accidents: A Nonfault Allocation of Costs, 78 HARV. L. REV. 713 (1965). In this early statement of his efficiency-based conception of liability, Calabresi begins with the following observation: I take it as given that the principal functions of "accident law" are to compensate victims and reduce accident costs. . . . . The notion that accident law's role is punishment of wrongdoers cannot be taken seriously. Whatever function we may wish to ascribe to punishment in criminal law, it simply will not carry over to civil accident suits. If the time-honored, though somewhat shopworn, distinctions between legal and moral fault and between damages and degree of culpability which prevail in tort law do not sufficiently demonstrate this proposition, then surely the prevalence of insurance priced on the basis of categories that have little to do with any individual insured's "goodness" or "badness" must. Id. at 713-14.
97. Compensation theorists have likewise argued that the objectivity of the fault standard reveals that negligence law, and tort law generally, cannot be understood as concerned with redressing wrongs, but instead are clumsy, expensive vehicles by which government attempts to deliver compensation to unlucky accident victims. See PATRICK S. ATIYAH, ACCIDENTS, COMPENSATION AND THE LAW 116-17 (1970). As Professor Patrick Atiyah argued: If the object were simply to condemn the defendant for paying insufficient attention to the interests of others, for preferring to risk the safety of others in his own interest, for 'fault' or immoral conduct, then there would plainly be a justification for subjectivising the standard of care. It is hard for an inexperienced person to be condemned for failing to observe that degree of skill which a more experienced person could show, to be told that he should have foreseen this or that risk or should have taken this or that precaution. But since the ultimate purpose of applying the negligence formula is to decide if compensation should be paid to an innocent accident victim, the merits of whose claim may have little to do with the demerits of the defendant, there is a stronger tendency for the law to pull the other way.
98. Id.; see also PETER CANE, ATIYAH'S ACCIDENTS, COMPENSATION AND THE LAW 41 (5th ed. 1993) (reasoning that the objective fault standard demonstrates that it is not intended to reinforce norms of right conduct or deter anti-social conduct but to compensate accident victims).
99. See JULES L. COLEMAN, RISKS AND WRONGS 324-26 (1992);
100. ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 3 (1999).
101. See generally Jules Coleman & Arthur Ripstein, Mischief and Misfortune, 41 MCGILL L.J. 91 (1995) (arguing that tort law instantiates a political conception of fair loss allocation).
102. COLEMAN, supra note 85, at 324; TONY HONORÉ, RESPONSIBILITY AND FAULT 76-82 (1999) (arguing that tort law seeks to fairly allocate responsibilities for harms caused by one to another);
103. RIPSTEIN, supra note 85, at 56; Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 506-07 (1992) (invoking and refining Honoré's concept of outcome-responsibility to support the claim that tort law determines when a person owes a duty to repair another's loss on the basis of when that person is responsible for having caused the loss). One way to gauge the commitment of these corrective justice theorists to a notion of tort as a law that shifts losses rather than as a law that provides recourse for victims of wrongs is to consider the degree to which they distance themselves from Professor Weinrib. Weinrib explicidy argues that tort corrects wrongs, not losses. See generally WEINRIB, supra note 31. Notably, both Coleman and Perry have argued that Weinrib's focus on wrongs instead of losses renders his theory interpretively problematic because it can only explain why a wrongdoer ought to be punished and ignores what they see as the hallmark question of tort law - why a wrongdoer owes the duty to compensate his victim. See COLEMAN, supra note 85, at 320-21; Perry, supra, at 479-80. By contrast, Professor Ripstein continues to profess allegiance to a roughly Weinribian view of tort law as embodying the moral obligation of wrongdoers to repair their wrongs. RIPSTEIN, supra note 85, at 265-66. As Ripstein also rejects Perry's critique of his views as essentially distributive, we are left unsure of how, finally, to characterize his position.
104. See COLEMAN, supra note 85, at 324-25 (arguing that while tort is wrongs-based in some sense, the fact that the "wrongs that fall within the ambit of corrective [justice] do not mark a moral defect in the agent or in her action" should lead us to regard the normative system that tort law exemplifies as one requiring tortfeasors to bear the costs of the losses they cause rather than rectifying their wrongs); HONORÉ, supra note 86, at 85-86 (noting that tort law, as compared to criminal law, often attaches liability to conduct that is minimally faulty and that this feature is consistent with tort law's effort to allocate responsibility for harms in a fair manner); RIPSTEIN, supra note 85, at 85 (arguing that Vaughan's use of an objective standard demonstrates that tort law seeks to set fair terms of social interaction rather than to attach liability to morally wrongful conduct on the grounds that it is wrongful).
105. Again, we emphasize that these theorists, in contrast to Posner and Calabresi, do not depict tort law as a collection of judicially-imposed liability rules that function - or can be made to function - as instruments for promoting a goal such as causing actors to take efficient precautions against harming others. Still, they insist that tort is not a law of wrongs, but instead a law that gives expression to principles of fair loss-allocation. And for them, fairness is determined not by principles of distributive justice or need but by a conception of when one person may justifiably be deemed responsible for another's loss.
106. Of course, this phenomenon might be problematic for some other reason; it might be inefficient, unfair, or otherwise undesirable from a policy perspective to reallocate losses to the Menloves of the world because they cannot take steps to prevent those losses. But this is now a different sort of concern. The problem lies not in a deep conflict between morality and tolerance of luck, but instead in debatable empirical or normative propositions about when and why losses should be reallocated.
107. Coleman's theory of corrective justice purports to offer an account of torts as "wrongs," but he is careful to indicate that he uses the term "wrongs" only in an extended sense. He also emphasizes that the hallmark of tort law is the assignment of losses to tortfeasors. See COLEMAN, supra note 85, at 324-35. As suggested below, we share Coleman's sense that the wrongs of tort law are distinct in some ways from full-blooded moral wrongs. We do not agree, however, that this entails that tort law can only be understood as instantiating a just scheme for allocating losses.
108. See WEINRIB, supra note 31, at 134-36, 142-44.
109. See id. at 135 ("With the materialization of wrongful injury, the only way the defendant can discharge his or her obligation respecting the plaintiffs right is to undo the effects of the breach of duty.").
110. See id. at 135, 143.
111. See id. at 143 ("Because the actor's breach of duty infringes the sufferer's right, liability reflects the defendant's commission of an injustice. Liability is therefore not the retrospective pricing or licensing or taxing of a permissible act").
112. See id.
113. See id. at 22-55.
114. See id. at 56-83.
115. See id. at 122 ("[H]aving a right implies that other actors are under the moral necessity to refrain from infringing it").
116. Unlike Weinrib, we do not maintain that tort law's wrongs are pre-political in any strong sense.
117. Here we will be pursuing a path marked by Coleman, among others, who distinguishes between acts characterized by "fault in the doer" and "fault in the doing." COLEMAN, supra note 85, at 333. The latter are acts that can plausibly be described as wrongful even though not connected to any moral defect in the wrongdoer. Id. Our analysis attempts to capture more explicitly why a thinner, less character- and control-dependent conception of wrongdoing is plausible generally and why tort law is a particularly apt locus for the use of such a conception.
118. For example, as noted above, trespass can be committed even where the trespasser is acting reasonably or in a manner that is innocent. See supra note 78-79 and accompanying text. Likewise, a person doing his or her best can still commit actionable negligence. See supra note 72 and accompanying text.
119. See John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Inegal Duties, 75 FORDHAM L. REV. 1563, 1586-90 (2006) (addressing the Positivist's Problem by building on H.L.A. Hart's response to Holmes and John Austin).
120. See id. at 1588.
121. See Goldberg, supra note 31, at 537-38 (discussing efforts by enterprise liability theorists to cast tort history and doctrine as broadly supportive of strict liability).
122. Which is presumably why the doctrine was and still is restated in the Restatement of Agency rather than the Restatement of Torts. See RESTATEMENT (THIRD) OF AGENCY § 2.04 (2006).
123. See supra text accompanying notes 78-79.
124. One can commit trespass unknowingly by intentionally occupying land that one has no reason to know is owned by another. But one cannot commit trespass accidentally, in the sense of acting without any intent to occupy the land in question - for example, carelessly losing control of one's car so that it ends up, against one's will, on property owned by another.
125. To say that the Doctrinalist's Problem is significantly overstated is not to say that it has no purchase. In fact, by pressing it, its advocates have perhaps helped to isolate pockets of truly strict, non-wrongs-based liability that stand in contrast to the general character of tort as a law of wrongs. For example, liability for blasting or other abnormally dangerous activities may not be genuinely wrongs-based. At a minimum, one likely can find language in judicial decisions applying this doctrine that emphasize that the law in no way disapproves of the activity in which the defendant engaged and that there is no legal directive or injunction to refrain from the conduct in question. Liability, on this rationale, attaches despite the fact that the conduct is not enjoined by the law as wrongful. Although those who pose the Doctrinalist's Problem are prone to expand out from special cases of socially valuable but highly dangerous activities such as blasting so as to treat more mainstream doctrines-particularly the law of products liability - as likewise not wrongs-based, we think this is a mistake, although the issue is difficult and may depend on the category of products liability claim. For now we can say that, in many cases at least, the products liability cause of action does treat as a
126. See supra text accompanying notes 66-83.
127. See P. F. Strawson, Freedom and Resentment, 48 Proceedings of the Aristotelean Society (1962) (generating a well-known theory of responsibility that builds, in part, on the observation that the human response of resentment to those who injure us is fundamental).
128. One example is the case of a gratuitous, intentional physical attack.
129. The same goes for patients seeking treatment from doctors and purchasers buying consumer products from retailers and manufacturers.
130. See supra text accompanying notes 86-90.
131. John Gardner, Obligations and Outcomes in the Law of Torts, in RELATING TO RESPONSIBILITY: ESSAYS IN HONOUR OF TONY HONORÉ ON HIS 80TH BIRTHDAY 111, 135-41 (Peter Cane & John Gardner eds., 2001) (presenting Honoré's idea of outcome-responsibility as providing the basis for a successful reply to the "moral intelligibility" objection to an account of tort law as a law of genuine duties). Coleman, Perry, and Ripstein emphasize the idea of allocating losses to a defendant who is outcome-responsible for those losses. Their view puts so much weight on the concept of responsibility that they cannot attribute adequate significance to the role in tort of wrongs - i.e., conduct that amounts to a wronging of a victim by an actor. We recognize that this is a somewhat tendentious claim as to each theorist, in light of Coleman's overt linkage of torts to "wrongs," Perry's reliance on notions of fault and duty to identify outcome-responsible agents who bear duties of repair, and Ripstein's embrace of Weinrib's work. A similar caveat is in order with respect to Gardner's work given his conception of tort as a realm of genuine duties. We cannot adequately address these interpretive questions with regard to any of these four theorists in the present Article.
132. Gardner distinguishes between duties (and reasons) to try and duties (and reasons) to succeed. Id. at 117; Gardner, supra note 20, at 53. Where we perhaps part ways with Gardner is over his apparent inclination to characterize the tort of negligence - or more precisely, the duty and breach elements of negligence - as instantiating a duty to try, rather than a duty to succeed. See Gardner, supra note 114, at 120 (arguing that, although the tort of negligence embodies a duty to avoid injuring, as opposed to a duty to avoid unduly risking injury, that duty is qualified in requiring only that the duty holder "try assiduously enough to avert. . . the unwelcome side-effects of one's . . . endeavours" (emphasis added)). Although we too have argued that the tort of negligence articulates a qualified duty to avoid injuring another, we think that the qualification is properly cast in terms of a success concept rather than an efforts concept - i.e., as a duty to avert injury to another by successfully exercising the care required of an actor under the circumstances.
133. Indeed, notwithstanding this argument - and notwithstanding Vaughans serving as the poster child for the objective standard of care - there is good reason to believe that this is exactly the scenario in Vaughan. Menlove was advised repeatedly that it was dangerous to stack hay in the manner in which he did. Vaughan v. Menlove, (1837) 132 Eng. Rep. 490, 491 (C.P.). Instead of heeding that advice, Menlove responded that his hay was insured and that he was therefore willing to "chance" having the hay catch fire. Id.
134. See id. at 493 (Tindal, C.J.) ("Instead . . . of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.").
135. This worry may have been justified given the suggestion that Menlove was fully aware of the risk in question. See id. at 491.
136. The concern here is akin to the concern that if the diminished mental capacity defense were expanded, criminal defendants would routinely invoke it.
137. See Vaughan, 132 Eng. Rep. at 493 (Tindal, C.J.).
138. A point made by the wise Yoda, responding to his pupil Luke Skywalker's hedge that he would "try" to master the ways of the Force. Says Yoda to Skywalker: "Do, or do not. There is no try." STAR WARS EPISODE V: THE EMPIRE STRIKES BACK (Twentieth Century Fox 1980). Thanks to Bob Rasmussen for this reference.
139. HOLMES, supra note 4, at 108.
140. See Stephen R. Perry, Responsibility for Outcomes, Risk and the Law of Torts, in PHILOSOPHY AND THE LAW OF TORTS 72, 101-08 (Gerald J. Postema ed., 2001) (discussing the general capacity to foresee and avoid injuries). By contrast, the argument against having tort law hold mentally incapacitated persons - e.g., a person suffering from severe mental retardation - responsible for wrongs strikes us as more compelling. Black-letter rules make no room for an insanity defense to tort claims, or at least to negligence claims. See, e.g., White v. Muniz, 999 P.2d 814, 818 (Colo. 2000) (holding that a battery cannot be committed by a person who, because of mental incapacity, lacks the awareness necessary to form an intent to cause harm or offense to another, but such a person can be held liable for negligently injuring another). It may matter that this rule will more likely apply to seriously mentally disabled persons in assessing their comparative fault for their own injuries. Even as applied to tort defendants, the doctrine may not be best explained as holding incapacitated persons responsible for having wronged others but instead as a means of reallocating losses as between actors and innocent victims or of holding persons with custodial responsibilities vicariously liable. See, e.g., Breunig v. Am. Family Ins. Co., 173 N.W.2d 619, 624 (Wis. 1970) (articulating these rationales).
141. See RESTATEMENT (SECOND) OF TORTS § 18 (1965) (offensive contact). Depending on the rule of a given jurisdiction, offensive-contact battery may require only that the defendant intentionally touch the plaintiff in a way that society deems unacceptable. So, for example, a newly arrived immigrant who strokes a stranger's hair and is unaware that doing so is an unacceptable form of touching might be liable for battery.
142. The old writ of trespass required victims merely to allege bodily injury directly caused by the forcible act of another. However, juries were permitted to consider extenuating circumstances, including absence of fault (however defined) in rendering their verdicts. J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 403-05 (4th ed. 2002).
143. See supra note 5 and accompanying text.
144. See, e.g., HOLMES, supra note 4.
145. See, e.g., STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 24 (1987) ("Under both strict liability and the negligence rule injurers are led to take socially optimal levels of care, but under the negligence rule they engage in their activity to too great an extent because, unlike under strict liability, they do not pay for the accident losses they cause.").
146. See id. at 24-25.
147. See supra notes 67-83 and accompanying text.
148. See supra text accompanying notes 1-3.
149. See supra notes 109-29 and accompanying text.
150. See GOLDBERG ET AL., supra note 1, at 3; Goldberg, supra note 31, at 517.
151. See supra text accompanying notes 74-76.
152. See HOLMES, supra note 4, at 42.
153. This contention depends on how best to characterize criminal law. We assume for the sake of argument that criminal law seeks to punish and deter wrongs that rise to a certain level of gravity or particularly concern the state given its interest in maintaining public safety. If it is instead conceived of more on a regulatory model, in which the aim is to steer conduct through sanctions and threat of sanctions regardless of whether the conduct in question is a serious wrong or a wrong at all, then prosecutions for minimally faulty (or even non-faulty) conduct might be warranted.
154. See supra Part II.
155. Cf. Avraham & Kohler-Hausmann, supra note 25, at 181 (arguing that, even if justice-based accounts of tort law are internally coherent, they fail to justify having a body of laws devoted to the instantiation of tort justice because there are other schemes that could be used to respond to accidents that are less influenced by luck).
156. See generally Alexander, supra note 25 (posing the question of whether tort law "makes sense" and concluding that it does not).
157. Id. at 23.
158. See supra note 5 and accompanying text.
159. See also Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695 (2003) (arguing for the descriptive superiority of wrongs-and-recourse theory over both corrective justice theories and law-and-economics theories of tort).
160. See supra text accompanying notes 1-3.
161. See supra text accompanying notes 34-49, 65.
162. See supra text accompanying note 34. The nearest competition for interpretive "fit" are the allocative views of certain corrective justice theorists, described briefly above. But even these views face significant challenges. As we have seen, they are predicated on the idea that tort law starts with the loss that the unfortunate plaintiff suffered and asks when it is appropriate to shift that loss to someone else. Doctrinally, this seems far too narrow a view to capture the domain of tort. Tort law is about redressing injury, which may or may not be accompanied by losses. See GOLDBERG ET AL., supra note 1, at 3; Zipursky, supra note 142. While negligence law requires proof of tangible losses for the plaintiff to have a cause of action, it is unusual in this respect. Battery, assault, trespass, fraud, libel, and many other torts do not require proof of harm or loss in any non-question-begging sense. Instead, they require injury - an interference with an interest of the plaintiff's (e.g., an interest in undisturbed property ownership or bodily control) that may or may not give rise to tangible losses. See supra text accompanying notes 73-79. For example, if D as a practical joke surreptitiously sedates P, such that the only effect on P is that P experiences a deep sleep for ten hours, P may still, in principle, sue D for battery. Any recovery would constitute redress for the invasion of P's dignitary interest in not being deliberately made to ingest a substance she did not choose to ingest. In addition, tort law quite evidently has a guidance function; it does not simply allocate losses after the fact. A lawyer advises her magazine-publisher client on what she can say without committing the tort of libel or invasion of privacy; a lawyer advises his psychiatrist client whether certain people need to be warned of a victim's dangerousness; a lawyer advises her pharmaceutical company client what harms physicians and patients must be warned of and instructed about. Tort law sets norms of right conduct. This, as we noted above, is why it is cogent to regard torts - treating someone in a manner tort law calls tortious - as legal wrongs.
163. As indicated above, loss-shifting views, whether economic or fairness-based, attempt to divorce the wrongs of tort law from ordinary notions of moral wrongs to solve or minimize the problem of compliance luck. See supra text accompanying notes 67-89. However, if our supposition is correct - that the prevalent social understanding of tort law is as a law of wrongs and redress - then there is a possibility that loss-shifting views will in the end not dampen but intensify concerns over tort law's substantive rules from conventional moral norms. A push to justify liability on the ground that it promotes efficient precaution-taking or achieves a fair allocation of losses may well be perceived not as succeeding in removing the wrongs from tort but rather as rendering tort doctrines unjust and inexplicable deviations from the core idea of wrongs that underwrites the enterprise of tort law in the first place. We suspect that this unhappy constellation of trends may be one of the reasons the tort reform movement is so able to capture the public imagination, in spite of what we regard as its largely ill-advised proposals.
164. Goldberg, supra note 2, at 532-44 (Locke and the common lawyers); Goldberg, supra note 62, at 462-64 (Austin).
165. Goldberg, supra note 2, at 549-76.
166. See Goldberg, supra note 31, at 520-21; John C.P. Goldberg, Essay, Unloved: Tort in the Modern Legal Academy, 55 VAND. L. REV. 1501, 1506-07 (2002).
167. See, e.g., Goldberg & Zipursky, supra note 37, at 1799-1811 (suggesting that modern efforts to read the duty element out of negligence mistakenly treat particular applications of that concept as if they demonstrate the inherent incoherence and regressivity of the concept itself); Goldberg & Zipursky, supra note 31, at 384-408 (criticizing as simplistic "Great Society" critiques of the common law of tort).
168. HOLMES, supra note 4, at 10, 46, 130-31, 149, 161-62 (suggesting a movement in the common law generally from primitive notions of vengeance to modern notions of prevention and compensation).
169. See Goldberg & Zipursky, supra note 31, at 406-07.
170. Id. at 406.
171. See id. at 405-07.
172. See id.
173. See id. at 404.
174. We should make clear that we are not denying the existence of pathologies associated with a law of wrongs and redress, including, for example, excessive litigiousness and indefensible attributions of responsibility and liability which sometimes result when attorneys exploit or over-stimulate the moral sensibilities of both jurors and judges. In fact, our account of tort law as setting norms of proper conduct that are in some ways relatively unforgiving might help on this last score. One of our central aims is to dissociate the idea of committing a wrong from the idea of engaging in highly culpable, easily avoidable conduct. If judges and jurors can appreciate that torts often do not carry the full weight associated with other forms of wrongdoing, perhaps they will also see that victims of such wrongs are entitled to less substantial redress than is owed to victims of out-and-out moral wrongs.
175. See Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern American Tort Law, 26 GA. L. REV. 601, 605-17 (1992).
176. We take this to be the very significance of watershed modern negligence cases like MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916). See Goldberg & Zipursky, supra note 37, at 1812-25. Obviously, there is considerable debate over how to understand the emergence of strict products liability in the 1960s and 1970s. Some will argue that the doctrine provides an example of courts responding to victim misfortune by identifying a new wrong. Others will contend that the doctrine implements non-wrongs-based loss-shift-ing principles. Our view is that at least some - and perhaps many or most - instances of products liability rest on the notion that product sellers commit a wrong against consumers by releasing a product with a defect posing dangers of physical injury during ordinary use, which danger is later realized.
177. Alan Erbsen, From "Predominance" to " Resolvability": A New Approach to Regulating Class Actions, 58 VAND. L. REV. 995, 1086 n.204 (2005) (referencing these programs).
178. See, e.g., Goldberg & Zipursky, supra note 31; Goldberg & Zipursky, supra note 37; Zipursky, supra note 37.
179. See, e.g., Avraham & Kohler-Hausmann, supra note 25, at 182.
180. See supra text accompanying note 138.
181. See Ripstein & Zipursky, supra note 27, at 230-31 (arguing that, once freed of the notion that liability is what a wrongful injurer can be held responsible for, legal systems have no reason to select accident victims over other innocent but unfortunately needy people as the beneficiaries of largesse).
182. See Baker, supra note 26.
183. See generally Benjamin C. Zipursky, Two Dimensions of Responsibility in Crime, Tort, and Moral Luck, 9 THEORETICAL INQUIRIES L. (forthcoming Jan. 2008) (developing aspects of the causal luck analysis offered above to elucidate moral luck problems within moral philosophy).
184. See Williams, supra note 8, at 39.
185. See Nagel, supra note 8, at 36-38.
186. See id. at 37-38.
187. See JOHN DEWEY, HUMAN NATURE AND CONDUCT 315 (1922) ("Liability is the beginning of responsibility. We are held accountable by others for the consequences of our acts. . . . In vain do we claim that these are not ours; that they are products of ignorance not design, or are incidents in the execution of a most laudable scheme. Their authorship is imputed to us. We are disapproved, and disapproval is not an inner state of mind but a most definite act").