Equal accountability through Tort law

Northwestern University Law Review

Volumn 103, Issue 4, 2009, Pages 1765-1821

  Solomon, Jason M ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 76849108842     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (238)

1. See Posting of Daniel Keller to First Vioxx Trial, Carol Ernst Testifies Vioxx Risks Unknown, http://firstvioxxtrial.blogspot.com/2005_08_01_archive.html (Aug. 5, 2005, 17:35 EST)(describing Ernst's testimony).
2. See also Plaintiffs' Original Petition, Ernst v. Merck & Co., Inc., No. 19961BH02 (Tex. Dist. May 24, 2002), 2002 WL 32902034.
3. See generally Janice G. Inman, First Vioxx Ruling: What Does It Mean for Merck?, 24 No. 3 LJN's Prod. Liab. L. & Strategy 3 (Sept. 2005) (summarizing Ernst's and Merck's arguments and strategy at trial).
4. The original jury verdict of $253 million was reduced by the judge to $26 million in accordance with a recently passed Texas -tort reform" provision. See Ernst v. Merck & Co., Inc., No. 19961BH02, 2006 WL 4661007 (Tex. Dist. June 23, 2006) (ordering that Ernst recover from Merck the sum of $26.1 million); Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b) (Vernon 2008) ("Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000."). The verdict was eventually overturned a few years later on appeal, on the ground of insufficient evidence of causation. See Merck & Co., Inc. v. Ernst, --S.W.3d ---, 2009 WL 1677857 (Tex. App. June 4, 2009). I offer this case as an example of the kind of case that is at stake in preemption and tort reform debates because the particular case was a high profile one, and the kind of case-challenging the side effects of a drug-is particularly relevant to preemption. My use of it is not meant as an endorsement of its clearly excessive verdict.
5. Joyce B. Margarce & Michelle R. Scheiffele, Is the Preemption Defense for PMA-Approved Medical Devices in Jeopardy?, 75 Def. Couns. J. 12, 23 (2008).
6. In recent litigation, a medical device company, Medtronic, Inc., argued, as could pharmaceutical companies like Merck, that -allowing plaintiffs' claims to proceed to juries to impose their own ad hoc requirements contrary to those set up by the FDA would 'guarantee chaos in the controlling standards, unprincipled second guessing of FDA regulatory enforcement decisions, and a flood of scientifically dubious warnings.'
7. Indeed, this happened. See Nora Lockwood Tooher, Verdicts & Settlements January 16, 2006: Texas Jury Awards $253 Million in First Vioxx Trial, Lawyers Weekly USA, Jan. 16, 2006 available at 2006 WLNR 23714535 ("Since the Aug. 19 verdict [in the Ernst case] Merck has evened the score by winning a defense verdict in the second Vioxx trial, and a third trial ended in a hung jury, with all but one of the 12 jurors supporting [Merck]. The stakes in the first wave of trials are enormous, with more than 9,000 Vioxx cases pending in state and federal courts.").
8. See Richard Epstein, Rule of Law: Ambush in Angleton, Point of Law, Aug. 22, 2005, http://www.pointoflaw.com/columns/archives/001482.php (arguing that the implicit verdict in the original Ernst case, and subsequent cases, was to -shut down the entire quest for new medical therapies").
9. See, e.g., 18 Federal Procedure, Lawyer's Edition § 43:83 (2008) (summarizing the National Highway and Traffic Safety Administration's preemption provision, which bars certain common law tort actions for failure to meet minimum standards set forth by the Administration).
10. See, e.g., Thomas Ginsberg, Litigation Inoculation, Phila. Inquirer, July 9, 2006, at E1, available at 2006 WLNR 11813379 (discussing -the Bush [A]dministration's efforts to rein in claims against pharmaceutical companies"); Myron Levin & Alan C. Miller, Industries Get Quiet Protection from Lawsuits, L.A. Times, Feb. 19, 2006, at 1, available at 2006 WLNR 6961228 ("[T]he Bush [A]dministration is providing industries with an unprecedented degree of protection at the expense of an individual's right to sue and a state's right to regulate."); With Help from Kessler, Waxman Mounts Assault on FDA Preemption, FDA Wk., May 16, 2008, available at 2008 WLNR 9277647 (discussing Congressman Waxman's questions about -why FDA has so aggressively stepped up its preemption arguments under the Bush [A]dministration").
11. See, e.g., Nina A. Mendelson, A Presumption Against Agency Preemption, 102 Nw. U. L. Rev. 695, 699 (2008) ("The institutional focus of agencies makes them particularly ill-suited to consider state autonomy to regulate or federalism concerns."); Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727, 756 (2008) ("Even when directed by presidential executive order to consider the federalism implications of their actions, agencies have generally sought to avoid such an obligation."); Ernest A. Young, Executive Preemption, 102 Nw. U. L. Rev. 869, 870 (2008) (arguing that because the states do not elect or select members of federal administrative agencies, -[a]gency action. evades both the political and the procedural safeguards of federalism").
12. See William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. Rev. 1547 (2007) (arguing that the choice between setting a regulatory floor as opposed to a ceiling has very different institutional implications).
13. See Samuel Issacharoff, Regulating After the Fact, 56 DePaul L. Rev. 375, 380-84 (2007) (articulating the importance of -ex post accountability" in the U.S. regulatory regime)
14. Carl Tobias, FDA Regulatory Compliance Reconsidered, 93 Cornell L. Rev. 1003, 1009 (2008)
15. ("Limited resources and authority may prevent the FDA from being an effective arbiter of optimal, rather than minimal, safety. For example, the FDA may approve a new drug before it receives thorough experimental data proving the drug is safe and efficacious because the agency depends substantially on manufacturer information and is pressured to certify pharmaceuticals quickly.")
16. see also Peter Barton Hutt, The State of Science at the Food and Drug Administration, 60 Admin. L. Rev. 431, 432 (2008) (describing the FDA as -an agency with expanded responsibilities, stagnant resources, and the consequent inability to implement or enforce its statutory mandates").
17. See, e.g., Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008) (holding that the preemption clause of the Medical Device Amendments of 1976, 21 U.S.C. § 360k(a) (2006), bars tort claims challenging the safety or effectiveness of medical devices approved by the FDA).
18. See 129 S. Ct. 1187 (2009).
19. See Carter Wood, Preemption: The Legislative Undermining Under Way, Point of Law, July 8, 2008, http://www.pointoflaw.com/archives/2008/07/preemption.php (discussing the Medical Device Safety Act, H.R. 6381, 110th
20. Cong. (2008), as -[b]eing sold as overturning [Riegel]"). The implicit tension in Supreme Court opinions between those who assume that this is the case, as opposed to those who believe that tort law serves a function related to compensation or justice, is observed in Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449, 459-71 (2008). See also Richard Nagareda, FDA Preemption: When Tort Law Meets the Administrative State, 1 J. Tort L. 1, 2 n.8 (2006) (citing Sharkey, supra).
21. SeeRichard A. Epstein, A Welcome Revolution, The Nat'l L. J., Feb. 6, 2006, available at http://web.archive.org/web/20080315100638/ http://www.law.uchicago.edu/epstein-fda-delays.html (discussing the detrimental effects of tort lawsuits on the availability of drugs on the market)
22. Amanda Erickson, Critics Blast Feds'Legal Shields for Manufacturers, Chi. Trib., June 29, 2008, at C5, available at http://web.archive.org/web/20080629100754/
23. http://www.chicagotribune.com/news/nationworld/chi-lawsuit-protection-bd jun29,0,5381352.story (quoting Ted Frank, an American Enterprise Institute fellow, stating that -liability-happy lawyers have put companies and designers in a 'damned if you do, damned if you don't' situation").
24. citing John C.P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 521-37 (2003).
25. See F. Patrick Hubbard, The Nature and Impact of the "Tort Reform" Movement, 35 Hofstra L. Rev. 437, 470 (2006).
26. Randall R. Bovbjerg & Joel M. Schumm, Judicial Policy and Quantitative Research: Indiana' Statute of Limitations for Medical Practitioners, 31 Ind. L. Rev. 1051 (1998);
27. Thomas A. Eaton & Susette M. Talarico, A Profile of Tort Litigation in Georgia and Reflections on Tort Reform, 30 Ga. L. Rev. 627 (1996)
28. David A. Hyman et al., Estimating The Effect of Damage Caps in Medical Malpractice Cases: Evidence from Texas, 1 J. Legal Analysis 355 (2009), available at https://ojs.hup.harvard.edu/index.php/jla/article/view/16/39.
29. John C.P. Goldberg, What Are We Reforming? Tort Theory' Place in Debates over Malpractice Reform, 59 Vand. L. Rev. 1075 (2006) [hereinafter Goldberg, What Are We Reforming?].
30. This is not the first, and will no doubt not be the last, article on the topic. Indeed, I do not try to invent a new theory here, but attempt to make a modest contribution to existing theories and debates and take as a virtue that this Article builds on the work of others.
31. See infra text accompanying notes 80-81.
32. This may well be in part a result of their interpretive methodology. They have explained that they see the first step in analyzing tort law as understanding it from the -inside," as judges who must decide cases do; therefore, for them, following the perspective of a common law judge, -the question of whether there is an adequate normative justification for tort law has not been front and center." John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 Md. L. Rev. 364, 364-65 n.2 (2005) [hereinafter Goldberg & Zipursky, Accidents]. For a more thorough account of the different tort theories, see generally John C.P. Goldberg, Twentieth Century Tort Theory, 91 Geo. L.J. 513 (2003). Id. at 579-80.
33. As George Fletcher put it, -The fashionable questions of the time are instrumentalist: What social value does the rule of liability further in this case? Does it advance a desirable goal, such as compensation, deterrence, risk-distribution, or minimization of accident costs?" George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537, 538 (1972) (footnote omitted).
34. See, e.g., Charles Fried & David Rosenberg, Making Tort Law: What Should Be Done and Who Should Do It, 26-27 (2003) (explaining that they find it -incomprehensible" that the tort system would -assert a moral mission of doing 'individual justice,'" thereby increasing the cost of acci-dents).
35. See generally Jules L. Coleman, Risks and Wrongs (1992) (explaining tort law as concerned with identifying whether there are instances of -wrongful loss" where a wrongdoer ought to compensate the victim for the harm caused); Ernest J. Weinrib, The Idea of Private Law (1995) (describing corrective justice as a self-contained practice where those who behave wrongfully discharge their duty of repair by compensating those they have harmed); Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973) (outlining a libertarian theory of tort law where the act of causing harm to another, even with without fault, is ground for compensation); Fletcher, supra note 27 (explaining both negligence and strict liability as expressions of a single reciprocity principle). Other leading corrective justice theorists include Arthur Ripstein and Stephen Perry. See, e.g., Arthur Ripstein, Equality, Responsibility and the Law (1999); Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992).
36. See, e.g., Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv. L. Rev. 961, 1044-45 (2001) ("Initially, we note that most authors who advance notions of corrective justice are making positive-that is, descriptive-arguments; in particular, they suggest that corrective justice is the principle that is most consistent with common law tort doctrine. To this extent, their claims about cor-rective justice have no direct relevance to our undertaking because our thesis is entirely normative, being concerned with the proper manner of assessing legal policy. (Indeed, we do not assert that the law fully reflects the prescriptions of welfare economics, and we argue. that the law is influenced by notions of fairness, perhaps including corrective justice.).") (footnote omitted).
37. Even some corrective justice theorists appear to agree with this. See, e.g., Ernest J. Weinrib, Cor-relativity, Personality, and the Emerging Consensus on Corrective Justice, 2 Theoretical Inquiries L. 107, 158 (2001) ("[F]or all its theoretical sophistication, the exploration of corrective justice by tort theorists has involved a comparatively narrow set of legal doctrines.").
38. To be fair, some scholars seem to think that a pluralist notion of an area of the law is better than a -monistic" one. See, e.g., Jane Stapleton, Evaluating Goldberg and Zipursky' Civil Recourse Theory, 75 Fordham L. Rev. 1529, 1560 (2006) ("We can see what is distinctive about a tree, but we cannot reduce this to a unitary notion. Indeed, why would we want to do so?").
39. The idea of an equilibrium restored by corrective justice comes from Aristotle, Nicomachean Ethics, Book 5.5, 74-76 (T. Irwin trans., 1999).
40. See Ernest J. Weinrib, Understanding Tort Law, 23 Val. U. L. Rev. 485, 494-526 (1989); see al-so Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 13-24 (2001) [hereinafter Coleman, The Practice of Principle] (referring to the -bilateral" structure of tort law).
41. See Ernest J. Weinrib, The Idea of Private Law 135-36 (1995) ("[T]he defendant's liability to the plaintiff rectifies both the normative gain and the normative loss in a single bipolar operation.").
42. Indeed, Coleman does not think that identifying such a norm is his burden under the methodolog-ical approach he favors. See Coleman, The Practice of Principle, supra note 34, at 4-5 n.4 (distin-guishing his approach from that of Ronald Dworkin, who would look to a moral norm or principle); see also id. at 5 ("The defensibility of corrective justice as a moral ideal is. independent of its role in ex-plaining tort law.").
43. See Arthur Ripstein, Tort Law in a Liberal State, 1 J. Tort L. Iss. 2, Art. 3, at 11 (2007), available at http://www.bepress.com/jtl/vol1/iss2/art3 ("You can use your means, but not mine."). Ripstein is relying on the Rawlsian idea of -primary goods" here. See Arthur Ripstein, The Division of Responsibility and the Law of Tort, 72 Fordham L. Rev. 1811, 1812-13 (2004).
44. See Tony Honore, The Morality of Tort Law-Questions and Answers, in Philosophical Foundations of Tort Law 83-84 (David Owen ed. 1997); Ripstein, supra note 29, at 48-93 (describing tort law as a way of determining -a fair division of risks").
45. See Arthur Ripstein, As If It Had Never Happened, 48 Wm. & Mary L. Rev. 1957, 1972, 1984-86 (2007) (discussing how -money reverses the deprivation" of one's means).
46. There is a significant body of literature on the moral norm underwriting corrective justice and the relationship between corrective justice and distributive justice; I do not intend to contribute to this body nor thoroughly canvass it here. My aim is simply to show that the moral norm is on shaky foundations-that besides the other criticisms, one aspect that has prevented corrective justice theory from getting more traction is the lack of a compelling justification for such a system.
47. This point has been made by many who criticize corrective justice, including Hanoch Dagan, The Distributive Foundation of Corrective Justice, 98 Mich. L. Rev. 138 (1999).
48. Jules Coleman uses this strategy in Political Morality and Tort Law (unpublished and undated manuscript), available at http://www.law.yale.edu/yclp/papers.html. To be sure, Coleman refers to his thoughts in this unpublished manuscript as -very preliminary and tentative as I am by no means certain of the views expressed or of the arguments offered in their support." Civil recourse theory was first introduced by Zipursky in Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1, 6 (1998) [hereinafter Zipursky, Rights, Wrongs, and Recourse]. Shortly afterwards, Goldberg and Zipursky published John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998), which largely focused on the relationality of duty but also asserted that a relational duty approach should go hand in hand with a civil recourse theory of tort law. Goldberg and Zipursky have extended this joint relationality-and-recourse approach in sev-eral joint articles since 1998. See Goldberg & Zipursky, Accidents, supra note 24; John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 724 (2001); John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law From the In-ternal Point of View: Holmes and Hart on Legal Duties, 75 Fordham L. Rev. 1563 (2006) [hereinafter Goldberg & Zipursky, Internal Point of View]; John C.P. Goldberg & Benjamin C. Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other "Quaint" Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. Cal. L. Rev. 329 (2006); John C.P. Goldberg & Benjamin Zipursky, Tort Law and Moral Luck, 92 Cornell L. Rev. 1123 (2007) [hereinafter Goldberg & Zipursky, Moral Luck]; John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 Va. L. Rev. 1625 (2002). Goldberg and Zipursky have developed civil recourse theory separately in, especial-ly: 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 (2005) [hereinafter Goldberg, Constitutional Status of Tort Law]; Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 Geo. L.J. 695, 718-21 (2003) [hereinafter Zipursky, Civil Recourse]; and Benjamin C. Zipursky, Philosophy of Private Law, in The Oxford Handbook of Jurisprudence & Philosophy of Law (Jules Coleman & Scott Shapiro eds., 2002).
49. See, e.g., Goldberg, Constitutional Status of Tort Law, supra note 44, at 532-58; Zipursky, Philosophy of Private Law, supra note 44, at 637-42.
50. See Zipursky, Civil Recourse, supra note 44, at 697-98 (arguing that his -model of rights, wrongs, and recourse. aims to provide a superior account of the structure of tort law to that offered by both law and economics and corrective justice theory").
51. The piece that most specifically targets corrective justice theory is id. at 709-33.
52. For a summary of these critiques, see Jason M. Solomon, Judging Plaintiffs, 60 Vand. L. Rev. 1749, 1785-86 (2007).
53. Zipursky, Civil Recourse, supra note 44, at 754 ("[C]orrective justice theory itself misses the true structure of tort law. Tort law is a system in which individuals are empowered to bring rights of actions against those who have committed torts-legal wrongs-against them.").
54. Goldberg, What Are We Reforming?, supra note 21, at 1076 ("To posit that tort law is a system for deterring undesirable conduct and compensating injury victims is, essentially, to think of tort law as a branch of the administrative state.").
55. John Fabian Witt, Contingency, Immanence, and Inevitability in the Law of Accidents, 1 J. Tort L. 1, 12 (2007). Interestingly, Jane Stapleton's recent critique of recourse theory, though containing several grounds, does not include this one, acknowledging that recourse theory is an advance over both law and economics and corrective justice theory on the metric of fit. See Stapleton, supra note 32.
56. Alan Calnan, In Defense of the Liberal Justice Theory of Torts: A Reply to Professors Goldberg and Zipursky, 1 N.Y.U. J.L. & Liberty 1023, 1024 (2005) [hereinafter Calnan, In Defense of the Liberal Justice Theory] (charging that -these corrective justice 'insiders' have not just challenged the theory they claim to support, but have virtually left it for dead").
57. See Goldberg, Twentieth Century Tort Theory, supra note 25, at 570-78.
58. See Ripstein, As If It Had Never Happened, supra note 39, at 1971-72.
59. Goldberg & Zipursky, Accidents, supra note 24, at 403.
60. Goldberg, Constitutional Status of Tort Law, supra note 44, at 605.
61. H.L.A. Hart, The Concept of Law 26-33 (2d ed. 1997) (introducing the distinction between these two kinds of rules).
62. Indeed, Goldberg and Zipursky have made this point. See Goldberg & Zipursky, Unrealized Torts, supra note 44, at 1642-46.
63. To be sure, it might seem odd to criticize corrective justice for not taking the structure of tort law seriously enough, as it has been itself criticized for taking structure too seriously. See, e.g., Kenneth W. Simons, Justification in Private Law, 81 Cornell L. Rev. 698 (1996) (reviewing Weinrib, supra note 29). Indeed, corrective justice improved upon economic accounts significantly by explaining certain as-pects of the structure of tort law: why the defendant must pay damages to a particular victim (as opposed to a general public fund to be distributed to victims) and why there is a causation requirement in tort. See Jules L. Coleman, Risks and Wrongs 382 (1992); Weinrib, supra note 29, at 132-33. But it does not explain-as civil recourse theory does-why equilibrium is brought about by a private lawsuit initiated at the victim's discretion, given that this state of affairs leads to underlitigation on certain legi-timate claims, leaving much disequilibrium uncorrected. Zipursky, Civil Recourse, supra note 44, at 752-53.
64. See generally Calnan, In Defense of the Liberal Justice Theory, supra note 57 (criticizing re-course theory and offering an alternative -liberal" justice theory in its place); Jane Stapleton, Evaluating Goldberg and Zipursky' Civil Recourse Theory, 75 Fordham L. Rev. 1529, 1562 (2006) (providing reasons why the recourse theory project was -unnecessary," -overblown in its claims, awkward and in-convenient in application," and -internally incoherent in its account of the 'guidance' it claims that the law of torts sends out").
65. John Finnis, Natural Law: The Classical Tradition, in The Oxford Handbook of Jurisprudence and Philosophy of Law 1, 56 (Jules Coleman & Scott Shapiro eds., 2002). Jane Stapleton makes a version of this point as well. See Stapleton, supra note 74, at 1562 (arguing that the civil recourse theorists' -project is actually a normative one, namely to persuade lawyers to choose the conceptual arrangements they prefer," and if the project were framed this way, the theory would get greater traction).
66. See Zipursky, Civil Recourse, supra note 44, at 735 ("In what follows, I attempt to explain the principle of civil recourse and to show how it illuminates the structure of tort law. I will not attempt to justify this principle, except to the extent that explaining it will involve illuminating its intelligibility and normative appeal."); id. at 755 ("I have been cautious. to characterize my aims as interpretive and not normative."); Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 6 ("The account I offer is in-tended to be a framework for a theory of tort law that is descriptive, not prescriptive. I shall not be arguing that. the principle of civil recourse is morally correct."). But see Goldberg, Constitutional Status of Tort Law, supra note 44, at 583 (offering an -interpretive and normative argument").
67. Zipursky himself uses a deeply interpretive jurisprudential approach that he calls -pragmatic conceptualism," which resists the separation of the descriptive and normative that Finnis and other legal theorists typically use. He describes the approach in part this way: Pragmatic conceptualism suggests that a variety of concepts and principles in tort law constitute that area of the law. Identifying those concepts and principles is a large part of offering a legal theory. However, a closely related (and sometimes inseparable) part of legal theory is rendering the concepts and principles so identified intelligible from a normative point of view. Benjamin C. Zipursky, Pragmatic Conceptualism, 6 Legal Theory 457, 472 (2000). For a more com-plete explanation of this jurisprudential approach, see id. at 474-78. For a similar if distinct approach, see Coleman, The Practice of Principle, supra note 34, at 3-12 & n.12 (describing the -pragmatic method" of asking what principles are -embodied" in a legal practice, and citing Zipursky, supra).
68. Finnis, supra note 65, at 57 (italics and alterations in original) (quoting Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 85).
69. Id. According to the jurisprudential approach laid out in Pragmatic Conceptualism, the recourse theorists are identifying the concepts and principles-such as a right to recourse-at work in tort law, and rendering them -intelligible from a normative point of view." Zipursky, supra note 79, at 472. In order to do this, they rely in large part on Lockean social contract theory. See, e.g., Goldberg, Constitu-tional Status of Tort Law, supra note 44, at 541-44 (explaining that Locke's social contract theory claims that -victims of wrongs possess a natural right to reparations from wrongdoers, and that govern-ment, as custodian of individuals' rights, owes it to them to provide a law of reparations"); Zipursky, Civil Recourse, supra note 44, at 735-37; Zipursky, Philosophy of Private Law, supra note 44, at 637-44; Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 85-86 (discussing the fairness of provid-ing an avenue of recourse using the -language of social contract theory" (citing John Locke, Second Treatise of Government §§ 7-10 (C.B. Macpherson ed., Hackett 1980) (1690))). However, even if Goldberg and Zipursky are right about having said enough, from a normative point of view, to quell a certain kind of critique based on the unappealing nature of a set of vengeance-like principles allegedly at the basis of tort law, there is still an extraordinarily important question about whether the system is at the end of the day normatively justifiable. I am starting to address that question in this Article.
70. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 602-03; Goldberg & Zipursky, Unrealized Torts, supra note 44, at 1641-44.
71. See Zipursky, Civil Recourse, supra note 44, at 736-37; Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 84.
72. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 538-41.
73. For more recent accounts, see Steven Smith, Reductionism in Legal Thought, 91 Colum. L. Rev. 68 (1991) (referring to the primary function of tort law as -dispute resolution").
74. See, e.g., Stephen D. Sugarman, Doing Away with Personal Injury Law 63 (Quorum 1989).
75. See Oliver Wendell Holmes, Jr., The Common Law (1881).
76. See John Fabian Witt, Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First-Party Insurance Movement, 114 Harv. L. Rev. 690, 778-97 (2001) (discussing the development of first-party insurance as an alternative to tort law).
77. According to Zipursky: -The statement that one has a 'right' to bring an action against a defendant is a way of saying that fairness demands that the state recognize an individual's privilege to proceed against the defendant for civil recourse." Id.
78. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 545-59; Zipursky, Philosophy of Private Law, supra note 44, at 641-42.
79. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 531-68 (arguing that a -right of redress" is embedded in the political and constitutional structure of the United States). The -structur-al due process" phrase is taken from Lawrence Tribe. See id. at 530 & n.18 (citing Laurence H. Tribe, Structural Due Process, 10 Harv. C.R.-C.L. L. Rev. 269 (1975), but changing the usage to convey the idea that -citizens enjoy rights to certain political institutions and bodies of law"). Besides looking backward to the understanding of early American elites, pre-Civil War state courts, Fourteenth Amend-ment proponents, and the Supreme Court after passage of the Fourteenth Amendment, Goldberg also argues that -[b]y identifying tort law's linkages to liberty, democracy, equality, limited government, and the rule of law, I aim to explain why even today courts and legislatures have reasons to take seriously the idea that our Federal Constitution includes a right to a law for the redress of wrongs." Id. at 606.
80. Again, their interpretive methodology may lead the recourse theorists to resist answering this question in this way. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 611 (arguing that -a law for the redress of private wrongs is a basic component of our political regime").
81. See Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 85 (after making the fairness point, saying that -if we wish, we can also frame this point in the language of social contract theory"). For a fuller development of this framework, see Zipursky, Philosophy of Private Law, supra note 44, at 637-44 (using ideas from Locke and Blackstone to develop the idea that in the case of individual wrongs, -the rejection of purely private aggression is replaced by the empowerment of private parties to alter the legal status of wrongdoers, through a civil process that includes the state" (italics omitted)).
82. Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 85-86.
83. Zipursky, Civil Recourse, supra note 44, at 737.
84. Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 86. See also Benjamin C. Zipursky, Two Dimensions of Responsibility in Crime, Tort and Moral Luck, 9 Theoretical Inquiries L. 97, 110 (2008) [hereinafter Zipursky, Two Dimensions of Responsibility] ("[A] central normative reason for having a form of law like this is that the empowerment of private parties who have been wronged to an avenue of recourse against the wrongdoer is part of a social contract, softening the force of the more general prohibition on retaliation against wrongdoers.").
85. Zipursky acknowledges this in Zipursky, Philosophy of Private Law, supra note 44, at 642 ("The Lockian social contract metaphor cannot take much pressure, as sympathetic critics from Hume to Rawls have pointed out.").
86. Ripstein, Tort Law in a Liberal State, supra note 37, at 9.
87. A version of this -normatively unattractive" argument was made in Emily Sherwin, Compensa-tion and Revenge, 40 San Diego L. Rev. 1387 (2003). Another reason may simply be that their inter-pretive methodology of -pragmatic conceptualism" resists a clean separation between the descriptive and normative.
88. Goldberg & Zipursky, Unrealized Torts, supra note 44, at 1644.
89. Goldberg, Constitutional Status of Tort Law, supra note 44, at 608-10 (explaining how, -[a]s a body of law that carves out these loci of responsibility, tort helps to maintain a version of civil society that is distinctively liberal"); Goldberg & Zipursky, Accidents, supra note 24, at 368; accord Goldberg & Zipursky, Internal Point of View, supra note 44, at 1564, 1575-77 (using H.L.A. Hart's account of the -internal aspect" of rules to bolster the notion of tort as a law of -genuine duties" of conduct among individuals); Goldberg & Zipursky, Moral Luck, supra note 44, at 1151-57, 1164 ("[W]e have shown that the idea of responsibility within tort law meshes well with familiar and powerful everyday judgments about responsibility that are deeply embedded in social practices.").
90. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 607 ("As the framers of the Fourteenth Amendment understood, to render a person capable of suing (and being sued) for injuries suffered (and caused) is to enforce a conception of equality. Each of us is in principle accountable to each other; none is above or below the law."). In coauthored work, Goldberg and Zipursky also suggest some support for this idea, though they do not defend or develop the claim in any detail. See Goldberg & Zipursky, Accidents, supra note 24, at 369 (arguing that tort law, as a law of -responsibilities and re-dress," connects -in deep ways to basic principles of liberty and democratic equality," contributes to -the maintenance of social cohesion within a dynamic and generally individualistic culture," and -af-firms the notion that each of us is equal in owing and being owed various obligations by others"); Gold-berg & Zipursky, Moral Luck, supra note 44, at 1167 ("In holding all persons-rich and poor, powerful and powerless-to the same duties and by empowering each to seek redress when duties are breached and injuries result, tort law embodies and enforces notions of social equality."). See also Goldberg & Zipursky, Accidents, supra note 24, at 406 (positing that the idea of civil recourse allows individuals to be independent of both the government and of -other private individuals' assertions of power and will over them," thereby -equalizing power," -disbursing power to hold individuals accountable," and reduc-ing reliance upon government).
91. See Carol J. DeFrances et al., Civil Jury Cases and Verdicts in Large Counties 2, 11 (U.S. Dep't of Justice 1992), available at http://www.ojp.usdoj.gov/bjs/abstract/cjcavilc.htm (finding that out of 377,421 tort cases, 277,087 were automobile accident cases and 65,372 were premises liability cases based on -the dangerous condition of residential or commercial property").
92. Dan B. Dobbs, The Law of Torts § 118 (2000). Another important source of resistance is the causation requirement, which arguably draws a morally arbitrary distinction between one who is held liable because her careless behavior happens to cause harm, and one who behaved in exactly the same way but was fortunate that no one was harmed by her carelessness. This issue is discussed in Goldberg & Zipursky, Moral Luck, supra note 44.
93. See Holmes, supra note 87, at 145-63. (1837) 132 Eng. Rep. 490 (C.P.), 3 Bing. N.C. 468.
94. Others, including Goldberg and Zipursky, have written about this recently as a problem of -compliance luck." See, e.g., Goldberg & Zipursky, Moral Luck, supra note 44, at 1143-63.
95. Goldberg and Zipursky offer a more extended version of an argument like this in Part III of Goldberg & Zipursky, Moral Luck, supra note 44.
96. See Benjamin C. Zipursky, Sleight of Hand, 48 Wm. & Mary L. Rev. 1999, 2033-41 (2007) (explaining the -civil competency" theory of the reasonable person standard); see also Patrick J. Kelley, Who Decides? Community Safety Conventions at the Heart of Tort Liability, 38 Clev. St. L. Rev. 315 (1990) (discussing the -community norms" theory of the reasonable person standard). Alan Calnan makes the point that to judge people more subjectively, on the other hand, is itself wrongful because it involves giving those who are unable to meet common standards of conduct more liberty than their fair share at the risk of violating others' security. See Alan Calnan, The Fault(s) in Negligence Law, 25 Quinnipiac L. Rev. 695, 735 (2007); see also Arthur Ripstein, Closing the Gap, 9 Theoretical Inquiries L. 61, 76 (2008) ("The standard of care is objective, because it permits each person to impose the same degree of risk on others as others impose on them."). On the other hand, there are examples in the law, such as children and people with physical disabilities, where we do take their individual inabili-ty to live up to common norms into account in assessing liability.
97. see also Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311, 312-13 (1996); Arthur Ripstein, The Division of Responsibility and the Law of Tort, 72 Fordham L. Rev. 1811, 1832-33 (2004) [hereinafter Ripstein, The Division of Responsibility].
98. See, e.g., Steven Hetcher, Creating Safe Social Norms in a Dangerous World, 73 S. Cal. L. Rev. 1 (1999)
99. See, e.g., Richard W. Wright, Negligence in the Courts: Introduction and Commentary, 77 Chi.Kent L. Rev. 425, 439-40 (2002) (discussing the -prohibitive cost" theory).
100. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931, 931 (2000). For the moment, I want to remain agnostic on these possibilities.
101. See Restatement (Third) of Torts: Liability for Physical Harm § 3 (Proposed Final Draft No. 1, 2005) ("Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm."). But see Ronen Perry, Re-Torts, 59 Ala. L. Rev. 987 (2008), for a criticism of the Restatement's definition of negligence as unwisely adopting the Hand formula.
102. See Ripstein, The Division of Responsibility, supra note 114, at 1832-33.
103. Arthur Ripstein lays out a view of the wrong in terms like these in his book Equality, Responsibility and the Law, supra note 29, and in subsequent work. See Ripstein, Closing the Gap, supra note 112, at 72-80; see also Ripstein, The Division of Responsibility, supra note 114; Arthur Rips-tein, Private Law and Private Narratives, 20(4) O.J.L.S 683 (2000); Arthur Ripstein, Private Order and Public Justice: Kant and Rawls, 92 Va. L. Rev. 1391 (2006); Ripstein, Tort Law in a Liberal State, su-pra note 37. Goldberg has criticized Ripstein's notion of reasonableness in negligence law, which re-quires a balancing of liberty and security, as being too thin a concept, and unable to explain vast swaths of tort law (like product liability). See John C.P. Goldberg, Rights and Wrongs, 97 Mich. L. Rev. 1828, 1853-55 (1999) (reviewing Ripstein, Equality, Responsibility, and the Law, supra note 29). But I think Goldberg is too hasty in dismissing this notion. When a pharmaceutical company, for example, does not put a warning on a prescription medicine, one can say that the company, its executives, and its shareholders are pursuing their own ends (sales and profits) with insufficient regard for the safety and security of others (customers). To be sure, the concept is just that-a concept-and it does not provide actual answers to questions of how the liberty and security interests should be balanced in particular cir-cumstances, but it does provide a framework for addressing the question.
104. P.F. Strawson, Freedom and Resentment, in Proceedings of the Aristotelean Society 48 (1962). See also Goldberg & Zipursky, Moral Luck, supra note 44, at 1154 ("[V]ictims of these norm violations are likely to regard themselves as having been wronged and tend to have concomitant feelings of resentment and blame in response.")
105. A related idea is that resentment is in some sense a -natural" emotion, common and inevitable in any society where individuals hold one another to expectations. See R. Jay Wallace, Responsibility and the Moral Sentiments 32 (Harvard Univ. Press 1998) (discussing in part, though differing with, Strawsonian ideas).
106. See Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment 45-50 (Harvard Univ. Press 2003).
107. See Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability 17 (Harvard Univ. Press 2006) [hereinafter Darwall, The Second-Person Standpoint]
108. See Gideon Yaffe, Reasonableness in the Law and Second-Personal Address, 40 Loy. L.A. L. Rev. 939, 960 (2007) (arguing that we can see a negligence case as an effort on the part of the plaintiff to -successfully execute an act of second-personal address of a second-personal reason"). Thanks to Gautam Huded for this suggestion.
109. See, e.g., Steve Sugarman, Doing Away with Tort Law, 73 Cal. L. Rev. 555, 609-11 (1985).
110. Indeed, Allstate's -Accident Forgiveness" insurance plan is premised on such a notion. The in-surance company's advertisement for the plan reads: -Accidents happen-we're all human. That's why Allstate offers Accident Forgiveness. It keeps your car insurance rates from going up just because of an accident-even if it's your fault." See Allstate.com, Auto Insurance: Innovative Policy Features with Your Choice Auto, http://www.allstate.com/auto-insurance/auto-insurance-features.aspx (last visited Sept. 24, 2009).
111. This is why punitive damages are only allowed in cases involving intentional or reckless wrongdoing. See Dobbs, supra note 107, at § 381.
112. This debate still rages on among today's female pop vocalists (and former American Idols, no less). In her song -Since U Been Gone," Kelly Clarkson sings of the liberation that comes with moving on from an ex, while, in contrast, Carrie Underwood praises the satisfaction that comes from getting re-venge on a cheating ex by taking a Louisville Slugger to his car in her hit song -Before He Cheats." Kelly Clarkson, Since U Been Gone (RCA Records 2004); Carrie Underwood, Before He Cheats (Arista Records 2006). See also Jessica Yadegaran, Beyond "Respect': Women Spell Out R-E-VE-N-G-E in Songs, Videos, PopMatters, May 25, 2007, http://www.popmatters.com/pm/news/article/ 41605/beyond-respect-women-spell-out-r-e-v-e-n-g-e-in-songs-videos (discussing the recent trend of -revenge fantasy" songs by today's female pop singers). Thanks to Tyler Bryant (UGA '08) for situating this debate in pop culture.
113. The importance of the distinction will become clear later in this section when looking specifically at filing a lawsuit as the mechanism for -acting against" wrongdoers. My point is that looking at individuals' motives for filing lawsuits is analytically distinct from examining the normative appeal of the social practice of acting against wrongdoers through law.
114. See Friedrich Nietzsche, On the Genealogy of Morality 20-22 (Keith Ansell-Pearson ed., Carol Diethe trans., 2d ed. 2007).
115. See J.L. Austin, How to Do Things With Words (1962).
116. See Finnis, supra note 65, at 59 (italics and changes in original) (quoting Zipursky, Rights, Wrongs, and Recourse, supra note 44, at 85).
117. See, e.g., Peter French, The Virtues of Vengeance 187 (2001).
118. Darwall began to apply his ideas to legal theory, offering some brief and preliminary thoughts on how tort law is an instantiation of the second-person standpoint. See Stephen Darwall, Law and the Second-Person Standpoint, 40 Loy. L.A. L. Rev. 891 (2007). For an account of how Darwall's ideas might help lead to a contractualist account of contract law, see Robin Kar, Contract Law and the Second-Person Standpoint, 40 Loy. L.A. L. Rev. 101 (2007).
119. He actually claims that much of our moral practices are -irreducible" to other stand-points, but I need not adopt this claim for my purposes. Nor do I need to embrace Darwall's claim that his observations about the second person standpoint lead naturally to a contractualist account of law as offered by T.M. Scanlon and John Rawls. See Darwall, The Second-Person Standpoint, supra note 127, at 300-20. For a critique of Darwall on these and other grounds, see R. Jay Wallace, Reasons, Relations, and Commands: Reflections on Darwall, 118 Ethics 24 (2007).
120. See id. at 99 ("There can be no such thing as moral obligation and wrongdoing without the normative standing to demand and hold agents accountable for compliance.").
121. This idea was made famous by Guido Calabresi. For an introduction to this theory, see Guido Calabresi, The Costs of Accidents (1970).
122. See Darwall, The Second-Person Standpoint, supra note 127, at 3.
123. Darwall acknowledges that this kind of second-person reasoning can be seen as consistent with first-person reasons, but argues that it is quite inconsistent with third-person reasons.
124. Darwall, The Second-Person Standpoint, supra note 127, at 65-90.
125. Darwall uses Alanis Morrisette's song -You Oughta Know" to make this point.
126. This is a modified version of Kant's -kingdom of ends" (placing the Golden Rule squarely within the -second-personal circle of concepts" discussed in the book).
127. See Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659 (1992) [hereinafter Hampton, Correcting Harms]. To be sure, Hampton did not appear to believe that this kind of -moral injury" had occurred in all tort cases. See id. at 1664-65 (citing as examples where -moral injury" is not at issue both Vincent v. Lake Erie Transportation. Company, 124 N.W. 221 (1910), and a hypothetical case where a slightly careless driver slips on the road on a rainy day after rounding a turn and hits another car). Anthony Sebok relies heavily on Hampton's
128. Though unlike tort law, the retributive justice that Hampton discusses is delivered through the state and criminal laws.
129. See generally Jeffrie G. Murphy, Getting Even (2003) (offering a qualified defense of ven-geance, and suggesting that forgiveness is appropriate only in limited circumstances)
130. Robert Solomon, A Passion for Justice 272-86 (1995) (explaining that -vengeance is the original passion for justice").
131. See Kenworthey Bilz, The Puzzle of Delegated Revenge, 87 B.U. L. Rev. 1059, 1086-91 (2007).
132. Though this is an empirical question, it seems intuitively plausible that taking the action oneself might serve self-respect values in ways that the state or another doing so might not.
133. See, e.g., Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. Rev. 1015, 1025 (1997) (citing George Fletcher and Michael Moore).
134. William Ian Miller, Eye for an Eye 57 (2006).
135. Murphy describes this as -resentment that another has taken unfair advantage of one's sacrifices by free riding in a mutually beneficial scheme of reciprocal cooperation." Jeffrie G. Murphy, Forgiveness and Resentment, in Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy 14, 16 (Cambridge Univ. Press 1988).
136. This sort of example, pointing out the tension between corrective and distributive justice, is discussed by other scholars, including in Goldberg, Twentieth Century Tort Theory, supra note 25, at 574-75.
137. Thanks to Scott Hershovitz for suggesting a version of this point. See also John Gardner, The Mark of Responsibility, 23 O.J.L.S 157, 167 (2003) ("The fundamental point is to have structured explanatory dialogues in public, in which the object of explanation is ourselves. This point is not a point relative to which the procedure is instrumental; rather the point is in the procedure.").
138. See, e.g., Finnis, supra note 75, at 56; see also Calabresi, supra note 157, at 298 (arguing that the belief shared by individual justice theorists that there must be a connection between the injurers and the injured might stem from the idea that one should give the victim the -right to see to it that the injurer is brought to justice," and observing that this -smacks. of revenge" and -stems. from the not very healthy urge to get even").
139. See Paul Robinson, Owen Jones & Robert Kurzban, The Origins of Shared Intuitions of Justice, 60 Vand. L. Rev. 1633, 1683 n.215, 1683-84 (2007) (using the evidence of human universals across cultures as evidence of an evolutionary biology explanation for shared, core intuitions of justice, as opposed to social learning and other alternatives).
140. See id. at 1658.
141. See, e.g., Jared Diamond, Vengeance Is Ours, New Yorker, Apr. 21, 2008, at 74-87 (discussing the role of vengeance in clan warfare in the New Guinea Highlands).
142. One example of the state adopting this posture is self-defense in tort or criminal law. See, e.g., 6 Am. Jur. 2d Assault and Battery § 120 (2008) (discussing the availability of self-defense against torts of assault of battery); Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia 1444 (Thomson West 2007) (discussing the availability of self-defense in criminal law).
143. On proportionality in tort law, see, for example, 6 Am. Jur. 2d Twentieth Century Tort Theory § 124 ("One cannot use force in excess of that necessary under the circumstances."). On proportionality in criminal law, see, for example, Cleary, Jr., supra note 187, at 1461 ("A defendant may use only that amount of force necessary to defend himself.").
144. See Paul H. Robinson, Legality and Discretion in the Distribution of Criminal Sanctions, 25 Harv. J. On Legis. 393, 425-26 (1988) (noting that special legislative provisions which make available the defense of self-defense -can easily result in improper outcomes," often because the means of self-defense is unnecessary or disproportionate to the threat).
145. For some accounts of the origins of the criminal law, see Bradley Chapin, Criminal Justice In Colonial America, 1606-1660 (1983) (discussing the development of criminal law in the early United States); Daniel Klerman, Settlement and the Decline of Private Prosecution in Thirteenth-Century England, 19 Law & Hist. Rev. 1 (2001) (describing the decline of private criminal prosecution in medieval England).
146. See French, supra note 143, at 110-11.
147. See Hampton, Correcting Harms, supra note 166, at 1694 (noting that, especially for serious crimes, the state may be the only institution that can respond and send an appropriate message on behalf of the community as an agent of retribution).
148. See David Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 N. Eng. J. Med. 2024, 2025 (2006).
149. See Gibbard, supra note 124, at 47 ("[A]n observer thinks an act blameworthy. if and only if he thinks it rational for the agent to feel guilty over the act."); Wallace, supra note 123, at 245 ("[R]esentment requires the belief that someone else has violated a demand to which I hold them."); Strawson, supra note 122, at 3 (noting the -familiar" sentiment that -the man who is the subject of justified punishment, blame or moral condemnation must really deserve it").
150. Jonathan Bennett, Accountability, in Philosophical Subjects: Essays Presented to P.F. Strawson 21 (Zach van Straaten ed., 1980) (noting that some -theories offer us a way of handling accountability. in a manner which does not demand reactive feelings" such as blame).
151. See Jeffrie G. Murphy, Forgiveness and Resentment, in Murphy & Hampton, supra note 178. Murphy discusses forgiveness as an acceptable means of letting go of resentment, but only if it is -con-sistent with self-respect" and does -not involve complicity or acquiescence in wrongdoing." Id. at 19. I would add that if there is too little -acting against" wrongdoers, this might be a threat to the moral order.
152. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 607 ("Tort law involves a lit-eral empowerment of victims-it confers on them standing to demand a response to their mistreat-ment."); Zipursky, Civil Recourse, supra note 44, at 734 ("When the state has recognized a right of action, and when a plaintiff has proven it, the state. empowers a plaintiff to act against a defendant.").
153. Goldberg & Zipursky, Accidents, supra note 24, at 368. See also Goldberg, Constitutional Sta-tus of Tort Law, supra note 44, at 608 (describing -loci of responsibility" as -particular contexts go-verned by norms of appropriate conduct that actors must observe for the benefit of identifiable classes of potential victims").
154. See Benjamin C. Zipursky, Legal Obligations and the Internal Aspect of Rules, 75 Fordham L. Rev. 1229, 1250 (2006) (describing his and Goldberg's work as being about -the idea that tort law as-signs liability in response to its judgment that a legal obligation to the plaintiff has been violated").
155. In fact, they are careful to limit their claim, saying that the -constructing and sustaining obliga-tions and responsibilities owed among persons and other entities" is not precisely described as a -goal" of or even -constraint" on tort law. Goldberg & Zipursky, Accidents, supra note 24, at 405-06. Rather, they seem to be arguing that this aspect of tort law is among important -evaluative dimensions along which to measure the value of the fault system." Id. They put it this way: -In answer to the broader, and still important question about the fault system, 'What good is it?', 'It plays a major role in sustaining forms of responsibility and obligation,' is a responsive reply." Id. at 406. Elsewhere in the piece, they refer to tort law as -an effort to recognize, refine, reinforce, and revise obligations that are instinct in various standard social interactions." Id. at 391.
156. See Girl, 14, Sues MySpace over Alleged Sex Assault, Associated Press, June 20, 2006, available at http://www.MSNBC.msn.com/id/13437619/.
157. See Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 851-52 (W.D. Tex. 2007), aff'd, 528 F.3d 413 (5th Cir. 2008).
158. See Goldberg & Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, supra note 44, at 740 (explaining that courts deciding duty questions ought to interpret precedent in light of various factors).
159. See Doe, 474 F.Supp.2d at 851-52.
160. To be sure, this thought experiment contains an implicit view of what counts as an adequate normative justification that would almost certainly be contested by Goldberg and Zipursky with their -pragmatic conceptualism" approach. See supra note 79.
161. See Henry Hart & Albert Sacks, The Legal Process 158-67 (1994) (introducing a -preliminary comparison of the functions and functioning of the most important of the institutions" in the American legal system)
162. See Restatement (Third) of Torts: Liability for Physical Harm § 7(b) (Proposed Final Draft No. 1, 2005) ("In exceptional cases. a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.") (emphasis added).
163. The jury's role in deciding these kinds of evaluative issues in tort may be problematic for the idea of tort as a law of private wrongs. I intend to explore this issue further in future work.
164. Again, Goldberg and Zipursky might well object to this framing of the question, but I think it is useful in helping to sharpen the ultimate issue of whether the tort law system can be justified.
165. Although many areas of tort law are now governed in part by statute, the determinations of who owes obligations to whom, and what the content of those obligations are, remains decided by judges and juries.
166. Again, Goldberg and Zipursky's claim is more limited, see supra note 201, but this section is designed to -test" the possibility that the loci-of-responsibility aspect of tort law might provide a broader normative justification for tort law.
167. To be sure, one could say these are merely two sides of the same coin: defining who owes responsibilities, or who is owed responsibilities. But recourse theory has emphasized the plaintiff's role in initiating and prosecuting tort actions, and has used this to help distinguish the theory both from tive justice theories and from criminal law where the state decides what actions to bring and prosecutes them.
168. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 531-68.
169. For a similar state-outsourcing argument on punitive damages, see Dan Markel, Retributive Damages, 94 Cornell L. Rev. 239 (2009).
170. Though without specific reference to Darwall, the recourse theorists do offer ideas in this vein in recent work, and I am attempting to build on and extend that work here. See, e.g., Goldberg & Zipursky, Moral Luck, supra note 44, at 1168 (noting that when courts are asked to enforce victims' demand for compensation, they are in part considering -who might fairly complain of having been wronged by the carelessness of another"); Goldberg & Zipursky, Unrealized Torts, supra note 44, at 1646 ("The power to enforce in torts derives from having been the victim of a wrong."); Zipursky, Two Dimensions of Re-sponsibility, supra note 98, at 124-28 (developing an -agency-linking conception of blameworthiness" that can be used in part to understand tort law as identifying who is -appropriately vulnerable" to blame).
171. See Gardner, supra note 182, at 167.
172. For an overview of New Zealand's no-fault accident compensation scheme, see generally Peter Davis et al., Compensation for Medical Injury in New Zealand: Does "No-Fault" Increase the Level of Claims Making and Reduce Social and Clinical Selectivity?, 27 J. Health Pol. Pol'y & L. 833, 835-37 (2002); Peter H. Schuck, Tort Reform, Kiwi-Style, 27 Yale L. & Pol'y Rev. 187 (2008); Rosemary Tobin & Elsabe Schoeman, The New Zealand Accident Compensation Scheme: The Statutory Bar and the Conflict of Laws, 53 Am. J. Comp. L. 493 (2006).
173. Weinrib, supra note 29, at 142.
174. See id. at 107 n.65 (noting the law's coercive authority -in subjecting wrongful action to an equal reaction that undoes the wrong").
175. See id. at 103 (discussing this -network of reciprocal pressures").
176. Although this is often framed as questioning the authority of juries, it implicitly questions the authority of the plaintiff who puts the question to the jury. See Michael D. Green, Prescription Drugs, Alternative Designs, and the Restatement (Third): Preliminary Reflections, 30 Seton Hall L. Rev. 207, 220-21 (1999) ("[W]ith such careful regulatory oversight, we need not have tort law (and inexpert juries) second-guessing FDA expert determinations.").
177. The Wall Street Journal editorial page recently made this same point in reference to plaintiffs' lawyers in an editorial criticizing Congress's attempts to overrule the recent Riegel preemption decision. See Editorial, Devices for Lawyers, Wall St. J., Aug. 13, 2008, at A16 ("If Democrats want tort law-yers and juries of laymen to be the ultimate arbiters of new devices, then they should do away with the FDA entirely.").
178. It is possible, of course, that the precise legal mechanism by which the plaintiff calls he who has harmed her to account might undermine the plaintiff's authority and, relatedly, the legitimacy of the system of accountability. Indeed, I am concerned about this problem in the context of the jury's authority to decide the question of -breach," and the relatively flexible and ill-defined reasonableness standard at the heart of most tort claims, including product liability claims. I intend to explore this concern, and possible reforms to address it, in a separate paper.
179. See Zipursky, Civil Recourse, supra note 44, at 733 ("A central. phenomenon of tort law is that a plaintiff sues a defendant.").
180. See generally Christine M. Korsgaard, The Sources of Normativity (1996) (critiquing leading moral theories).
181. See Ripstein, As If It Had Never Happened, supra note 39, at 1985 (noting that -your entitlement to your person and property does not depend on the particular purposes you pursue with it").
182. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 608 (arguing that tort law -build[s] on, amplif[ies], and revise[s] obligations that are already recognized, in part because of habits that both shape and are shaped by law").
183. See Ripstein, Tort Law in a Liberal State, supra note 37, at 8-12 (using Rawls's -division of responsibility" between society and the individual to argue that the state's role is to -enable people to take up their own responsibility for their own lives").
184. See generally Darwall, The Second-Person Standpoint, supra note 127.
185. Goldberg offers a version of this idea in Goldberg, Constitutional Status of Tort Law, supra note 44, at 608-10 (explaining how, -[a]s a body of law that carves out these loci of responsibility, tort helps to maintain a version of civil society that is distinctively liberal").
186. See Ripstein, Tort Law in a Liberal State, supra note 37, at 18 ("[A] regime of equal freedom requires everyone to limit their activity in the same ways so as to protect the liberty of others by protecting their ability to use their means to set and pursue their own purposes.").
187. See Miller, supra note 175, at 15 ("Peace is about settling accounts, paying back what you owe.").
188. See id. at 4-5 (discussing balancing the scales of justice, with the -core justice question" answered by evenness of the scales).
189. See id. at 40 (discussing tort law as a system -in which one is made 'whole' with money" for nonmonetary losses, such as the loss of a limb).
190. So far, I have offered the idea of equal accountability as the normative grounding for our system of tort law, but it may also be that a related justification is at work here as well: this backstop of a statesponsored system of mutual accountability gives us the confidence we need to conduct our affairs in a society of strangers and to enter into various kinds of relationships with others in order to accomplish our ends. A full exploration of this idea is beyond the scope of this paper, but rather than argue for the normative appeal of a state that provides a substitute for vengeance, we might instead profitably think about the normative unattractiveness of a liberal state without it.
191. See Marlynn Wei, Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws, 40 J. Health L. 107, 108 (2007) (noting that supporters of -apology laws" claim that they will encour-age doctors to disclose errors and subsequently reduce the number of medical malpractice lawsuits). See generally Aaron Lazare, The Healing Forces of Apology in Medical Practice and Beyond, 57 DePaul L. Rev. 251 (2008) (discussing the potential positive consequences of medical professionals apologizing to victims of malpractice, while noting some risks of such apologies).
192. See Steven Sugarman, A Century of Change in Personal Injury Law, 88 Cal. L. Rev. 2403, 2415 (2000) (describing one change, namely that -small claims are paid off at excessive levels by insurers who are eager to clear their dockets and afraid to take a chance that juries might award victims extravagantly high sums").
193. See Zipursky, Two Dimensions of Responsibility, supra note 98, at 110.
194. See Zipursky, Civil Recourse, supra note 44, at 739 ("The role of the state in a tort action is not to enforce a duty of the defendant's, but to empower a plaintiff with a claim.").
195. Though if the system was flawed such that wrongdoers were not held accountable when they should be for arbitrary or other reasons, this would undermine the normative force of having a system of tort law.
196. See supra note 1 and accompanying text.
197. See Richard Stewart, Even Jurors Shed Tears During Widow' Vioxx Testimony/Blaming Drug, Carol Ernst Tells About the Night Her Husband Died, Hous. Chron., Aug. 5, 2005, at B3, available at 2005 WLNR 24620166 (noting that on the day Carol Ernst's husband died, he had worked at the local Wal-Mart).
198. Cf. Bilz, supra note 172, at 1086-91 (explaining why delegating the task of revenge to the state might be preferable because it would help increase the victim's social standing).
199. See generally Darwall, The Second-Person Standpoint, supra note 127.
200. See generally Aristotle, Nicomachean Ethics, Book 5.5, 74-76 (T. Irwin trans., 1999); see also Weinrib, supra note 29, at 56-83 (discussing Aristotle's early account of corrective justice).
201. See generally Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans., Cam-bridge Univ. Press 1991); see also Weinrib, supra note 29, at 85-113 (discussing Kant's philosophy of right).
202. I am not arguing that this is the only way to achieve this goal of second-person moral address, see generally Darwall, The Second-Person Standpoint, supra note 127, nor do I need to. My project is interpretive; I am loosely trying to make sense of our social practices in the context of tort law.
203. See Ripstein, Tort Law in a Liberal State, supra note 37, at 8 (discussing the state's role -in enabling people to set and pursue their own purposes"). Ripstein's account uses John Rawls's description of the -division of responsibility" between the state and individuals as its starting point. Under Rawls's conception, it is up to individuals to choose their own ends, and it is up to the state to provide a framework within which individuals can plan their lives and pursue these ends. See Ripstein, The Division of Responsibility, supra note 114, at 1812.
204. See Ripstein, Tort Law in a Liberal State, at 8, 9. See also Goldberg, Constitu-tional Status of Tort Law, supra note 44, at 527 ("It is the duty of every State to provide, in the adminis-tration of justice, for the redress of private wrongs." (quoting Mo. Pac. Ry. Co. v. Humes, 115 U.S. 512, 521 (1885))); Zipursky, Civil Recourse, supra note 44, at 699 ("The state provides the plaintiff with a right of action. [The state is thereby] permitting and empowering plaintiffs to act against those who have wronged them."). Besides Ripstein and the recourse theorists, other scholars who make similar points include Joseph W. Little, Up With Torts, 24 San Diego L. Rev. 861, 876 (1987) ("The law of torts is a big brick in our foundation of democratic governance based upon tenets of minimal government, individual responsibility and personal accountability.").
205. See Kimberly Kessler Ferzan, Self-Defense and the State, 5 Ohio St. J. Crim. L. 449, 471 (2008) (arguing that when the state -fails to live up to its obligation" to protect people by offering a mechanism of self-defense, for example, the state opens itself to criticism of its legitimacy).
206. William Ian Miller, In Defense of Revenge, in Medieval Crime and Social Control 70 (1999).
207. This resistance to revenge or vengeance stems in significant part from Judeo-Christian values. -Vengeance is mine; I will repay, saith the Lord." Romans 12:19 (King James).
208. Jon Elster, Norms of Revenge, 100 Ethics 862, 862 (1990).
209. See, e.g., French, supra note 143; Miller, supra note 175.
210. See, e.g., Suzanne Uniacke, Why Is Revenge Wrong?, 34 J. Value Inquiry 61, 63, 67 (2000).
211. ("We are asking how and why the wrongfulness of an act stems from its having a particular motive, namely the desire for revenge.").
212. Even in the case of families who filed medical malpractice claims based on perinatal injuries to their infants-a tort setting where one might imagine that anger would play a large role-fewer than one in five cited the desire to -seek revenge or protect others from harm" as a motivation for filing suit. See Gerald B. Hickson et al., Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359, 1359, 1361 (1992).
213. But see The Big Lebowski (Polygram Filmed Entertainment & Working Title Films 1998) ("I'll kill your car!").
214. See Jennifer K. Robbennolt, What We Know and Don't Know About the Role of Apologies in Resolving Health Care Disputes, 21 Ga. St. U. L. Rev. 1009, 1015-24 (reviewing the survey, experimen-tal, and case-study evidence, but cautioning that considerably more empirical research remains to be done); Lee Taft, Apology and Medical Mistake: Opportunity or Foil?, 14 Annals Health L. 55, 85-87 (2005) (reviewing the evidence, consisting largely of case studies); see also Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 Mich. L. Rev. 107, 148-49 (1994) (finding that, in an experimental settlement negotiation based on a landlord-tenant dispute, tenants were more willing to accept the settlement offer when offered an apology, perhaps be-cause it -provided enough vindication of the tenant's moral position and sense of equity").
215. See Goldberg, Constitutional Status of Tort Law, supra note 44, at 602-03 (suggesting that an apology would not provide -satisfaction" to those who suffered significant harm).
216. Miller, supra note 175, at 25 (footnotes omitted).
217. In other ways, one could say that tort as civil recourse is overinclusive, for example, by allowing punitive damages that far exceed the measure of the harm done by a defendant to a particular plaintiff, and by allowing vicarious liability in instances where the defendant employer had used due care but is nonetheless held responsible for the actions of an employee. I think this argument has some force, and will explore it further in future work.
218. Though others have made this point in different ways, I owe this particular formulation to Ed Rubin. Cf. Edward L. Rubin, Beyond Camelot 153-54 (2005) (describing the commitment to promise-keeping contained in social contract theory as a remnant of medieval honor societies, and out of place in our -contemporary social ethos").
219. See Goldberg & Zipursky, Internal Point of View, supra note 44, at 1586 (describing the critique as saying that -legal 'duties' that provide the basis for liability in tort seem to be both seriously underinclusive and seriously overinclusive relative to standard notions of morality and moral duties"). A related version of this claim is made by the critics of corrective justice on -moral luck" grounds, frequently when discussing the causation requirement. See, e.g., Larry A. Alexander, Causation and Corrective Justice: Does Tort Law Make Sense?, 6 L. & Phil. 1, 12-17 (1987) (describing the causation requirement as a -fatal condition" at the core of corrective justice). But see Goldberg & Zipursky, Moral Luck, supra note 44, at 1132-40 (rebutting the -causal luck" critique).
220. Dan B. Dobbs & Paul T. Hayden, Torts and Compensation: Personal Accountability and Social Responsibility for Injury 912-13 (1997) (outlining the elements of defamation).
221. See Goldberg & Zipursky, Internal Point of View, supra note 44, at 1586 ("[B]ecause law comes with consequences that morality does not (most obviously state-enforced sanctions), and because there are, at times, demands on law that it take a certain form that renders it efficacious, capable of being internalized, and amenable to application by judges, there will be times at which it is appropriate for legislatures and judges and jurors to decline to elevate certain moral norms to legal norms.").
222. Another way of thinking about this is that the injury requirement is part of the normative struc-ture of tort law where particular plaintiffs must have -substantive standing" to confront defendants who they claim have wronged them. Goldberg & Zipursky, Unrealized Torts, supra note 44, at 1643-44 (de-scribing the injury requirement as one of -standing set by tort law"); see also supra note 197.
223. Though related, this argument is distinct from the legalized vengeance argument described above in Part IV.A. That argument was essentially that the right to recourse cannot have normative appeal because it bears too close a relationship to a concept with negative normative appeal: retaliation or vengeance. The argument here is a functional one: tort is serving as a social insurance mechanism, not a vehicle for individual justice. To be sure, the arguments are related, and might go this way: How do we know that tort is serving a regulatory function? Because the function that recourse theorists ascribe to it has so little normative appeal that it cannot possibly be true.
224. Besides those that I offer, see also John C.P. Goldberg, Ten Half-Truths About Tort Law, 42 Val. U. L. Rev. 1221, 1234-38 (2008) (rebutting the claim that the late nineteenth-century emergence of the term -torts" meant the -abandonment of the 500-year-old practice of inviting and adjudicating claims by injury victims against wrongdoers allegedly responsible for those injuries in favor of a new scheme of accident prevention or relief provision").
225. See Herbert M. Kritzer, Propensity To Sue in England and the United States of America: Blam-ing and Claiming in Tort Cases, 18 J.L.S. 400, 420-21 (1991) (using the idea of culture to help explain higher rates of claiming behavior in the United States compared to England). See generally Marshall S. Shapo, Tort Law and Culture (2003) (analyzing American tort law as a reflection of society).
226. See Kevin D. Hart & Philip G. Peters, Cultures of Claiming: Local Variation in Malpractice Claim Frequency, 5 J. Emp. Leg. Stud. 77, 91 (2008) (finding household income to be the strongest predictor of filing a claim)
227. see also Roger Feldman, The Determinants of Medical Malpractice Incidents: Theory of Contingency Fees and Empirical Evidence, 7 Atlantic Econ. J. 59, 62 (1979) (also finding household income to be a predictor).
228. See generally Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (2008) (describing and analyzing the interaction between tort and liability insurance). Liability insurance might even further advance some of the objectives of tort law.
229. See Goldberg, Ten Half-Truths About Tort Law, 279, at 1268-69 (suggesting that widespread liability insurance has made the opportunity for redress more available, thereby contributing to the -democratization of tort law")
230. Gary Schwartz, The Economics and Ethics of Liability Insurance, 75 Cornell L. Rev. 313, 365 (1990) (arguing in part that liability insurance may advance fairness goals associated with tort law). Thanks to Gautam Huded for this point.
231. See Tom Baker, Blood Money, New Money, and the Moral Economy of Tort Law in Action, 35 Law & Soc'y Rev. 275, 277 (2001).
232. In this way, the argument in the paper might be as useful or more so to legislators than judges. For related ideas, see Goldberg, Ten Half-Truths About Tort Law, supra note 279, at 1255-58 (arguing that the -make whole" formulation for damages is inaccurate historically and misleading conceptually); John C.P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DePaul L. Rev. 435, 438-47 (2006) (discussing the idea of -fair compensation" in Blackstone's Com-mentaries and other treatises).
233. California Supreme Court Justice Roger Traynor put the point nicely in a dissent in a case in-volving damages for pain and suffering: -Such damages originated under primitive law as a means of punishing wrongdoers and assuaging the feelings of those who had been wronged. They become increasingly anomalous as emphasis shifts in a mechanized society from ad hoc punishment to orderly distribution of losses through insurance and the price of goods or of transportation." Seffert v. L.A. Transit Lines, 364 P.2d 337, 345 (Cal. 1961) (citations omitted) (quoted in Peter W. Huber, Liability 132 (1988)).
234. See Hubbard, supra note 18, at 488-92 (describing such changes).
235. A related account is offered by Martin Stone, who provides an alternative reading of Aristotle's use of the word -equality" in his discussion of corrective justice. See Martin Stone, The Significance of Doing and Suffering, in Philosophy and the Law of Torts 156-59 (Gerald Postema ed. 2001) (plaining that this reading might interpret conduct as wrongful, and a departure from equality, because it is -inconsistent with the equal status of other affected agents"). Stone also indicates that the idea of responsibility at work in this kind of corrective-justice framework is not just about when someone may be blamed for her actions, but rather has to do with -the answerability of persons, potentially indifferent to one another, living in civic association." Id. at 159.
236. See Steven Walt, Eliminating Corrective Justice, 92 Va. L. Rev. 1311, 1320 (2006).
237. This view runs counter to that presented in Ripstein, As If It Had Never Happened, supra note 39, at 1972.
238. This view runs counter to that presented in Jules L. Coleman, Second Thoughts and Other First Impressions, in Analyzing Law: New Essays in Legal Theory 257, 302 (Brian Bix ed., 1998) ("Tort law is about messes. A mess has been made, and the only question before the court is, who is to clean it up?"). It is this -localized distributive justice" approach that is disapproved of by wrongs-based theorists like Weinrib and the recourse theorists. See, e.g., Coleman, supra note 73, at 222 ("When an accident occurs, costs are created. Someone has to bear those costs. No matter how hard we may wish them away, they won't disappear. The only question is, Who should bear these costs?").