Harry potter and the trouble with tort theory

Stanford Law Review

Volumn 63, Issue 1, 2010, Pages 67-115

  Hershovitz, Scott ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 78650383241     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (138)

1. See, e.g., WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 1 (1987) (defending "the hypothesis that the ommon law of torts is best explained as if the judges who created the law . . . were trying to promote efficient resource allocation").
2. See, e.g., JULES L. COLEMAN, RISKS AND WRONGS 325 (1992). Of course, tort theorists' substantive views do not sort perfectly by discipline, but the sort is good enough that it is not misleading to juxtapose an economist's view of tort with a philosopher's.
3. Though the notion that efficiency explains tort doctrine remains deeply influential in the legal academy, it is no longer fashionable for theoretical economists to make descriptive claims about tort law. Instead, most aim to model an ideal accident law. As will become clear, he problem Harry Potter will raise for economic approaches to tort afflicts both descriptive and normative projects.
4. Here, Potter's professor borrows from Guido Calabresi's famous formulation. See GUIDO CALABRESI, THE COSTS OF ACCIDENTS 26 (1970) ("I take it as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents.").
5. See id. at 135 ("A pure market approach to primary accident cost avoidance would require allocation of accident costs to those acts or activities (or combinations of them) which could avoid the accident costs most cheaply.").
6. See Jules L. Coleman, The Structure of Tort Law, 97 YALE L.J. 1233, 1243 (1988) (book review).
7. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 192 (7th ed. 2007) (stating that damages must be paid to the victim rather than the state because "otherwise the victim w[ould] have no incentive to sue"); Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 48 (1972) ("By creating economic incentives for private individuals and firms to investigate accidents and bring them to the attention of the courts, the system enables societyto dispense with the elaborate governmental apparatus that would be necessary for gathering information about the extent and causes of accidents had the parties no incentive to report and investigate them exhaustively."); see also Coleman, supra note 6, at 1243 (noting that "victims are included to give them incentives to litigate").
8. See POSNER, supra note 7, at 192 (stating that damages must be paid to the victim rather than the state because otherwise the victim "may take too many precautions"); Coleman, supra note 6, at 1243.
9. As Jules Coleman points out, the argument that "victims are included so that we may induce them to take efficient precautions and to avoid taking inefficient precautions, rests on the mistaken premise that including someone in litigation is the only way to influence her behavior." Coleman, supra note 6, at 1244.
10. Tort's collateral benefits must be distinguished from its external benefits-the benefits it generates that fall on people who do not participate in the system. Some of tort's collateral benefits are also external benefits but, as we shall see, others accrue to the parties in a lawsuit. Moreover, most of tort's primary benefits-lower accident costs-are external.
11. Tamara Relis, "It's Not About the Money!": A Theory on Misconceptions of Plaintiffs' Litigation Aims, 68 U. PITT. L. REV. 701, 723 fig.4 (2007).
12. Eighteen percent said that money was their primary motivation. Thirty-five percent said it was of secondary importance. Only six percent said money was their sole motivation, while forty-one percent did not cite money as a motivation at all. Id. We should probably not take these numbers too seriously. Medical expenses are often covered by collateral sources, and lawyers commonly take malpractice cases on contingency. Thus, plaintiffs in medical malpractice cases may have less reason to be concerned with money than plaintiffs in other sorts of suits. More importantly, plaintiffs might be embarrassed to admit monetary objectives to researchers, or think that they will come off less greedy if they emphasize other interests. See Judith Resnick, Dennis E. Curtis & Deborah R. Hensler, Individuals Within the
13. Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. REV. 296, 369 (1996) ("[P]ost hoc explanations by plaintiffs of their reasons for pursuing remedies may be influenced by a desire to downplay certain motives and highlight others perceived to be more socially desirable or noble."). However, even if we have reason to be skeptical when plaintiffs deny monetary motivations, we have no reason to doubt that many also have nonmonetary goals. Indeed, the fact that we worry about whether plaintiffs are telling the truth suggests that we think they think lawsuits properly serve some other purpose, such that it is gauche to mention the money.
14. Any system for implementing rules-whether litigation, regulation, or magical spell-has at least the prospect of generating benefits beyond those that the rules aim at. So it would be a mistake to think that only tort law has collateral benefits, or even that only tort law can generate the benefits that it does. Another legal regime might do just as well or better.
15. A natural thought to have at this point is that Potter could tweak his spell to give plaintiffs the answers they seek. No doubt that is true. The information plaintiffs are after could be printed on parchment and delivered by owl. However, to indulge the thought that Potter's spell could be tweaked is to miss the point of the thought experiment. Potter's spell, as we imagined it, does just what economists tell us tort's substantive rules aim to do. The spell does not guarantee that victims will acquire all the information they do in a tort suit because that benefit is collateral to the aim of tort law, as economists construe it.
16. See STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 262 (1987) ("Administrative costs are the various expenses borne by parties in resolving the disputes, or the potential disputes, that arise when harm occurs. Administrative costs thus include the time and effort spent by injurers, victims, and their legal counsel and insurers in coming to settlementsand in litigation, as well as the publicly incurred operating expenses of the courts.").
17. LANDES & POSNER, supra note 1, at 28. Here, Landes and Posner use "efficient" to mean wealth maximizing. See id. at 16 ("The positive economic theory of tort law holds that tort rules are efficient in the sense of wealth maximizing."). However, as Jules Coleman has explained, wealth maximization is not an efficiency criterion. Wealth, like welfare or utility, is a characteristic of states of affairs that allows them to be ranked by efficiency criteria. See Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV. 509, 523 (1980). Most economic analyses of law employ the Kaldor-Hicks criterion of efficiency, though Pareto superiority is sometimes used as well. The objection I present in this Article has the same force regardless of which efficiency criterion one uses. Thus, I speak only of "efficiency," notwithstanding the fact that the term is ambiguous between several related notions. The objection also holds regardless of whether one is ranking states of affairs in terms of wealth or welfare, though details of the argument might play out differently depending on which approach one adopts. When it matters, I assume that economists studying tortare interested in promoting welfare, not wealth, as nowadays nearly no one thinks wealth maximization is an attractive ethical principle, except perhaps as a proxy. See RONALD DWORKIN, A MATTER OF PRINCIPLE 237-68 (1985) (arguing that wealth is not a value); Richard A. Posner, Wealth Maximization and Tort Law: A Philosophical Inquiry, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 99, 101 (David G. Owen ed., 1995) (conceding to Dworkin that wealth does not have any "intrinsic, non-instrumental, plausibly 'ultimate' value," but nevertheless defending wealth maximization on pragmatic grounds).
18. See, e.g., LANDES & POSNER, supra note 1, at 48, 122, 129, 166, 245, 295.
19. SHAVELL, supra note 15.
20. CALABRESI, supra note 4, at 26.
21. One way to put it is that the private benefit is not a social benefit, as someone must pay the salaries of judges, lawyers, and insurance agents.
22. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002). 22. Id. at 11.
23. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002). 22. at 11-12.
24. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002). 22. at 3 (footnote omitted). I took this quote from the introduction to Fairness Versus Welfare, and that might seem unfair, given the premium on a pithy introduction. However, the quote reflects the discussion of tort law in the rest of the book. Kaplow and Shavell do not investigate tort's collateral costs and benefits.
25. Kaplow and Shavell list four ways tort influences welfare: by providing incentives to take care, by allocating the risk of accident costs, through expenditures on administrative costs, and through distributional effects. See id. at 86. They acknowledge that this list is incomplete, pointing out again that tort law may impact welfare if it satisfies or frustrates tastes for fairness and through its influence on social norms. See id. at 86 n.3. However, they do not address further ways in which tort affects well-being.
26. I mean this quite literally. The crystallization of conventional wisdom displayed in the best-known law and economics textbooks does not address tort's collateral costs andbenefits. Take, for example, Robert Cooter and Thomas Ulen's Law and Economics. Cooter and Ulen first examine a simple model, in which the "goal of the tort liability system is to minimize the sum of the costs of precaution and the harm caused by accidents." ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS 359 (5th ed. 2008). They then proceed to analyze a "more complex model" that includes administrative costs. Id. at 359-61. Cooter and Ulen do not, however, go on to develop a model of tort that takes account of its collateral costs and benefits. Their chapter on the legal process does not fill the gap. See id. at 414-84. There, they assume "that the economic objective of procedural law is to minimize the sum of administrative costs and error costs." Id. at 417 (emphasis omitted). The implicit view is that the only benefits generated by the legal process that must be factored into an economic analysis are those that flow from accurate implementation of substantive legal rules. Cooter and Ulen's textbook is not an outlier. Posner's Economic Analysis of Law also neglects tort's collateral costs and benefits. The chapter on tort law does not mention them, POSNER, supra note 7, at 167-210, and the chapter on procedure echoes Cooter and Ulen, reporting that the "objective of a procedural system, viewed economically, is to minimize the sum of [error and operating costs]," id. at 593. A. Mitchell Polinsky's An Introduction to Law and Economics does not fare better on this score. Polinsky says that "[i]n determining [the optimal level of liability], it is necessary to include not only the direct benefits and costs of the parties (such as the driver's benefit from driving and the pedestrian's expected accident cost), but also their litigation costs." A. MITCHELL POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS 145 (3d ed. 2003). That is true, but it is far from the whole picture, and tort's collateral costs and benefits never come on the scene.
27. See, e.g., A. Mitchell Polinsky & Steven Shavell, The Uneasy Case for Product Liability, 123 HARV. L. REV. 1437 (2010). In arguing for a skeptical attitude toward product liability, Polinsky and Shavell discuss a collateral cost-price distortions-and two collateral benefits-price-signaling and the dissemination of information about dangerous products to consumers and regulators. See id. at 1454-55, 1459, 1470. They fail, however, to address other potentially significant collateral consequences of products liability law, among them the satisfaction that victims might get from having an opportunity to hold the manufacturer of a defective product accountable, and the security and satisfaction that others might get from seeing manufacturers held liable. To know whether there is a strong welfare-based case for products liability, we would need to know the magnitude of these benefits, and much else beyond.
28. From time to time, the more sophisticated economic approaches touch on collateral costs and benefits of tort law. For example, Mark Geistfeld has argued that a welfare economics approach to tort might accommodate a "compensatory norm" that prioritizes security over liberty interests, even though such a norm would justify tort rules that are allocatively inefficient. See Mark Geistfeld, Negligence, Compensation, and the Coherence of Tort Law, 91 GEO. L.J. 585, 632 (2003). One might read Geistfeld to posit a potential benefit to tort law beyond minimizing accident costs that affects our identification of the optimal tort rules. To the extent that Geistfeld and other scholars complicate the standard economic analyses of tort by factoring in an occasional collateral cost or benefit, that represents an improvement, but a marginal one. As will become clear, piecemeal efforts to account for this or that collateral cost or benefit will not remedy the problem that the standard economic analysis faces. Uncertainty about the conclusions economists reach will persist so long as there are potentially significant collateral costs and benefits left out of their analyses.
29. It is possible, of course, that if victims were routinely told who the cheapest cost avoiders of their injuries were, they would judge the cheapest cost avoiders responsible in addition to or instead of the people we conventionally identify as injurers. That is an empirical question, about which we have little information. However, one suspects that the mere fact that a person is the cheapest cost avoider would not, in many cases, lead victims to judge that person responsible. For example, car manufacturers may be the cheapest cost avoiders of many accidents not because there is a defect in the car's design, but because they are in the best position to lobby for safer roads. See Coleman, supra note 6, at 1242 n.24.
30. POSNER, supra note 7, at 642.
31. See supra pp. 72-74.
32. Many will think this a point about procedure or evidence, not about tort, but that is precisely the attitude I want to push back against. That this is a point about procedure does not preclude it from being a point about tort, for the institution of tort law encompasses both substantive rules and the procedures through which they are implemented.
33. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available).
34. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available. at 789 (emphasis omitted) (citing STEVEN SHAVELL, FOUNDATIONS OF
35. ECONOMIC ANALYSIS OF LAW 236-37 (2004)).
36. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available. at 797.
37. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available. at 780.
38. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available.
39. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available. at 785 (emphasis omitted).
40. See Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 748-49 & nn.13-17 (2007) (citing representative cases and secondary sources categorizing jurisdictions by the way in which they make hedonic damages available
41. See Edward J. McCaffery, Daniel J. Kahneman & Matthew L. Spitzer, Framingthe Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 VA. L. REV. 1341, 1388-403 (1995).
42. Bagenstos & Schlanger, supra note 33, at 790.
43. Bagenstos & Schlanger, supra note 33. at 769.
44. Bagenstos & Schlanger, supra note 33
45. While Bagenstos and Schlanger would not award hedonic damages, they propose "award[ing] compensatory damages fully sufficient to enable tort plaintiffs with disabling injuries to fund often costly accommodations to enable their participation in the community." Id. at 751. Thus total damages might be higher under their proposal. Even so, their argument shows that collateral costs and benefits affect the optimal level of deterrence.
46. See LANDES & POSNER, supra note 1, at 229-30 (describing the Hand Formula "as an algorithm for deciding tort questions"). Of course, the variables in the Hand Formula should be understood to refer to marginal costs and benefits, rather than total costs and benefits. See id. at 87.
47. [1951] A.C. 850 (H.L.) 864-68 (Lord Reid) (appeal taken from Eng.) (U.K.).
48. Overseas Tankship (U.K.) Ltd. v. Miller S.S. Co. (Wagon Mound No. 2), [1967] 1 A.C. 617 (P.C.) 641 (appeal taken from N.S.W.) (U.K.).
49. Overseas Tankship (U.K.) Ltd. v. Miller S.S. Co. (Wagon Mound No. 2), [1967] 1 A.C. 617 (P.C.) 641 (appeal taken from N.S.W.) (U.K.).
50. Overseas Tankship (U.K.) Ltd. v. Miller S.S. Co. (Wagon Mound No. 2), [1967] 1 A.C. 617 (P.C.) 641 (appeal taken from N.S.W.) (U.K.). at 642; see also JOHN C.P. GOLDBERG ET AL., TORT LAW: RESPONSIBILITIES AND REDRESS 202-03 (2d ed. 2008) (reconstructing Reid's test for reasonableness).
51. Bolton, [1951] A.C. at 867 ("[I]t would be right to take into account not only how remote is the chance that a person might be struck but also how serious the consequences are likely to be if a person is struck; but I do not think that it would be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all.").
52. Though this is the standard view, it turns out that the Hand Formula may not provide incentive to take efficient precautions in some contexts. See Allan M. Feldman & Jeonghyun Kim, The Hand Rule and United States v. Carroll Towing Co. Reconsidered, 7 AM. L. & ECON. REV. 523 (2005). The worry stems from ambiguity in the way the Hand Formula should be interpreted when more than one party might take precautions. I shall not address this complication here, as it does not affect the argument that follows.
53. It assumes that potential defendants: 1) are rational in the narrow economic sense; 2) know the magnitude of their potential liability (which requires knowing the law, the facts, and the likelihood that a court will apply the law to the facts correctly); and 3) care only about the magnitude of liability, and not, say, the reputational costs or feelings of shame they might incur if a public judgment is entered against them. The first two assumptions are, of course, standard fare in economic analysis despite the fact that they are implausible. The third is an instance of the mistake that Harry Potter highlights.
54. See Giuseppe Dari-Mattiacci, Negative Liability, 38 J. LEGAL STUD. 21, 26, 33-38 (2009) (suggesting that the difference in scope between liability rules that govern negative and positive externalities is in part explained by the fact that in the case of negative externalities negligence rules allow control of care without influencing activity levels).
55. There is no refuge in the thought that rationality really does require cost-benefit analysis and jurors are just too squeamish to accept that. Whatever the fact of the matter, people's satisfaction with the tort system is partly a function of the degree to which it tracks their moral sentiments, and it is their satisfaction that matters for the argument. A more promising thought is that people's views about justice are neither stable, nor formed independently of the way the tort system works. That is probably true, and it might suggest that we could lead people to prefer Hand to Reid by adopting practices that applied Hand's rule. If so, the cost to following Hand would be transient.
56. Or maybe we should just keep doing what we actually do, which is to cast our lot with juries, rather than Reid or Hand. Recall that Hand offered his formula in an admiralty case. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). Jurors in tort suits are generally asked whether the defendant took ordinary or reasonable care, and they are not given any algebra to aid their judgment. See Stephen G. Gilles, The Invisible Hand Formula, 80 VA. L. REV. 1015, 1015-19 (1994).
57. The point of this example is not to suggest that we can squeeze concerns about justice into a cost-benefit analysis, carried out, say, in terms of utility. I doubt such a thing is possible, even in principle. Rather, the point is that we cannot segregate people's feelings about justice from a cost-benefit analysis of an institution that is taken by many to be centrally concerned with doing justice, for their satisfaction with the institution may depend on the degree to which it does what, in their view, justice requires.
58. See, e.g., Joel Waldfogel, The Deadweight Loss of Christmas, 83 AM. ECON. REV. 1328 (1993).
59. See Nancy Folbre, What You Got for Christmas, N.Y. TIMES ECONOMIX BLOG (Dec. 28, 2009, 6:52 AM), http://economix.blogs.nytimes.com/2009/12/28/what-you-got-for-christmas.
60. See, e.g., Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 677 (7th Cir. 2003) (Posner, J.) ("[A]n age-old purpose of the law of torts is to provide a substitute for violent retaliation against wrongful injury . . . .").
61. Indeed, the distinctions between primary and collateral benefits and administrative and collateral costs are merely heuristics for helping us to see the costs and benefits that economists ignore. From an economic perspective, tort has costs and benefits full stop. The fact that some costs and benefits are more directly related to the aim economists posit for tort law is irrelevant when assessing the institution, as the question whether any set of tort doctrines is efficient is a function of all its costs and benefits, not a restricted class of them.
62. See, e.g., DON HERZOG, WITHOUT FOUNDATIONS: JUSTIFICATION IN POLITICAL THEORY 123-32 (1985); id. at 131 ("As far as I know, no one has ever attempted even a sketch of [the kind of] decision [utilitarianism demands] for any actual problem . . . . For good reason, too: we would need to know unfathomably more about consequences and individuals than we do or can know. Attempting even a sketch would discredit the entire project.").
63. See Polinsky & Shavell, supra note 27. But see John C.P. Goldberg & Benjamin C. Zipursky, The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell, 123 HARV. L. REV. 1919 (2010) (cataloguing benefits of products liability Polinsky and Shavell neglect).
64. One might think that the issue here is whether an economic analysis of tort should involve what economists call a partial equilibrium analysis, or a general one. A partial equilibrium analysis studies a single market, ignoring any impact on markets for goods that are complements or substitutes. A general equilibrium analysis considers all markets simultaneously. I do not think this distinction helps us frame the question what costs and benefits count, as it is not clear how the relevant markets would be defined. But if one approaches the problem through this lens, the interesting question is not whether economists should do a partial or general equilibrium analysis. A general analysis is a nonstarter, precisely because the informational demands are so great. The question is which partial analysis economists should do. On the distinction between partial and general equilibrium analysis and its relationship to the economic analysis of law, see Mario J. Rizzo, The Mirage of Efficiency, 8 HOFSTRA L. REV. 641 (1980).
65. I benefitted here from discussion with Richard Primus.
66. This is, more or less, the civil recourse view of the institution, though not for reasons of relative magnitude of benefits. See infra note 105.
67. See generally DON DEWEES, DAVID DUFF & MICHAEL TREBILCOCK, EXPLORING THE DOMAIN OF ACCIDENT LAW: TAKING THE FACTS SERIOUSLY 413 (1996) (reviewing evidence and concluding that "[t]he tort system performs unevenly in deterring the causes of personal injuries").
68. See Rizzo, supra note 63, at 647 ("[T]he theory of second best tells us that efficiency improvements in one sector might make us worse off overall. In fact, unless we can acquire a great deal of information about interrelations between markets, we cannot know if such improvements bring us closer or farther from optimality.").
69. Except, of course, an argument in favor of an analysis that is partial only in the sense that the factors left out would not likely make a difference. The conclusions of ananalysis that is partial in that sense would be tentative, but not subject to an objection grounded in the theory of the second best.
70. To be clear, it is to cede the possibility of making a normative claim grounded in a welfarist view, which is the framework we are assuming here. A partial economic analysis may well underwrite normative claims that are not grounded in exclusively welfarist views, as such views need not regard an analysis that ignores significant determinants of welfare as defective. This is somewhat ironic. The analyses that economists are capable of doing are far more likely to be of use to people who do not think that we ought to maximize welfare to the exclusion of other goals than they are to people who do. This is another reason we should not wash our hands of economic analysis. However, this point is unlikely to redeem the economic analysis we have, as it is difficult to imagine the normative theory according to which tort's collateral costs and benefits are as a class irrelevant.
71. For development of the claim that economists are not able to explain the bilateral structure of tort law in which a victim sues her injurer, see JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LEGAL THEORY 12-24 (2001), and ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 46-48 (1995).
72. This approach is hinted at in Rizzo, supra note 63, at 643 ("One possibility is touse that notion [of wealth] which is most successful in explaining the law.").
73. On the difference between prediction and explanation, consider presidential elections. It turns out that in the age of television you can do a pretty good job predicting who will be president simply by asking which candidate is taller. See Open N.Y., Op-Chart, The Measure of a President, N.Y. TIMES, Oct. 6, 2008, http://www.nytimes.com/interactive/2008/10/06/opinion/06opchart.html (showing that since 1960, the taller candidate has won eight of the twelve elections in which there was a height differential). And you may do an even better job by learning a few macroeconomic facts about the months leading up to an election. But it simply does not follow that Ronald Regan's height advantage explains why he beat Jimmy Carter, nor that George W. Bush's defeat of John Kerry was a function of the economic climate that preceded the election. The point here is not that spurious correlations may sometimes yield accurate predictions. It is quite likely that both candidate height and macroeconomic factors are causally related to the outcomes of presidential elections. Rather the point is that what suffices to predict does not necessarily suffice to explain, as they are different activities with different criteria of success. On the question whether economists' models predict tort doctrine, see Lewis A. Kornhauser, A Guide to the Perplexed Claims of Efficiency in the Law, 8 HOFSTRA L. REV. 591, 624-26 (1980) (observing that more sophisticated, second-generation "models of accident law do not predict the efficiency of legal rules" to nearly the extent that more informal, firstgeneration models do). For a good illustration, see Feldman & Kim, supra note 51 (arguing that the Hand formula may not provide efficient incentives in the very sort of case in which it was proposed).
74. LANDES & POSNER, supra note 1, at 1.
75. Oddly, I think Landes and Posner know that they cannot deliver on the claim that
76. efficiency explains tort law. At the end of their book, they revise their hypothesis. They write: Our objective in this book has been to expound and test the hypothesis that the rules of the Anglo-American common law of torts are best explained as if designed to promote efficiency in the sense of minimizing the sum of expected damages and costs of care; or, stated differently, that the structure of the common law of torts is economic in character.Id. at 312 (emphasis added). This is a dramatic departure from the way the hypothesis is framed at the start of the book, where "efficiency" is not qualified: "This book explores the hypothesis that the common law of torts is best explained as if the judges who created the law . . . were trying to promote efficient resource allocation." Id. at 1. And again at the end of the first chapter: "[W]hat is surprising is not that judges sometimes fail to achieve efficient rules but how much of tort law can be explained on the simple hypothesis that it is indeed a system for bringing about an efficient allocation of resources to safety." Id. at 28. I would say that Landes and Posner are careful at the end of the book in describing what they have shown, but they are not careful enough even there, as their restricted notion of efficiency would exclude administrative costs from consideration, and yet they made recourse to them several times. See supra note 17 and accompanying text. Still, the bigger problem is that the unqualified claim-the claim on page one-is the famous claim, even though the book provides little support for it. The fact that tort promotes a form of "efficiency" that ignores collateral costs and benefits gives us little inkling whether tort promotes efficiency without the scare quotes, which is the normatively significant concept, the one we would like to know something about.
77. For ease of exposition, Potter's professor has a full-blown commitment to the principle of corrective justice, but one can think tort law is best understood as embodying that principle without taking a view on whether wrongdoers really do have a moral obligation to repair wrongful losses. See COLEMAN, supra note 70, at 5 ("The defensibility of corrective justice as a moral ideal is . . . independent of its role in explaining tort law . . . .").
78. In formulating the principle of corrective justice, Potter's professor follows Jules Coleman's approach in Risks and Wrongs. See COLEMAN, supra note 2, at 325.
79. Corrective justice theorists differ over which tort doctrines the theory has trouble explaining. Leading candidates include the market-share liability cases, most prominently Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989), and necessity cases, like Vincent v. Lake Erie Transp. Co., 124 N.W. 221 (Minn. 1910).
80. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965) ("Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.").
81. See id. § 314 cmt. c ("The rule [that there is no affirmative duty to rescue] is applicable irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection.").
82. I say "might" because the question how one should trade justice off against welfare is complicated and controversial, and it raises difficult questions about the commensurability of values.
83. WILLIAM IAN MILLER, FAKING IT 85 (2003).
84. He says: "The particular duty [corrective justice] imposes is to repair the loss. There may be other agent-relative reasons for acting that arise as a consequence of wrongfully injuring another, for example, the duty to apologize or to forbear from future harming, but these are not derived from corrective justice." COLEMAN, supra note 2, at 329.
85. Ernie Weinrib does not suggest that corrective justice calls for explanation or apology in his classic The Idea of Private Law. See WEINRIB, supra note 70. Stephen Perry raises the possibility that an agent who wrongs another ought to express regret. See Stephen R. R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 494 (1992). However, it is not clear whether he thinks this a requirement of corrective justice, as opposed to an independent moral requirement, and expressions of regret are importantly different from apologies. In Equality, Responsibility, and the Law, Arthur Ripstein discusses apologies mainly in objecting to Perry's outcome-responsibility account of tort liability, and he does not leave the impression that he thinks corrective justice calls for apology, much less explanation. See ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 100-03 (2001). Prue Vines is a notable exception. See Prue Vines, The Power of Apology: Mercy, Forgiveness or Corrective Justice in the Civil Liability Arena?, 1 PUB. SPACE: J.L. & SOC. JUST., art. 5, 2007, at 20 (suggesting that "the best way to think about apology in the civil liability arena is as a form of corrective justice").
86. Tony Honoré, The Morality of Tort Law-Questions and Answers, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 16, at 73, 78-79. I would make a minor revision in Honoré's formulation. Where he says "without justification," I would substitute "wrongfully," as I think one may wrong another even when one acts with justification. That is, I think there are justified wrongings. That is a fine point of moral theory, however, that we need not take up here.
87. Tony Honoré, The Morality of Tort Law-Questions and Answers, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 16. at 79. I have some hesitation in ascribing this wider conception of corrective justice to Honoré, as he does not explicitly contrast his view with narrower conceptions. However, he uses broader language to describe the demands of corrective justice than is typical, and he clearly thinks that "the claim to put things right" that "lies against the harmdoer" may sometimes "include[] an apology." Id. Therefore, I credit the wider conception to him, even though I am unsure whether he would endorse it.
88. It is an interesting question just how explanation and apology work to remedy wrongs. The philosophical literature on the question is oddly sparse. See Vines, supra note 83, at 7 n.22 (collecting citations to philosophical discussions of apology). Incidentally, we also do not have a clear picture of how compensation remedies a wrong. The standard lines-that damages make the victim whole or return her to her preinjury state-are often false, and sometimes cruelly so. Both issues are too complicated to delve into here. Our discussion can proceed on the basis that explanation, apology, and compensation are familiar remedies, even if we are uncertain how they do their remedial work.
89. Here are two troublesome sorts of cases: In the first, the person who is disrespected never had the respect to which she was entitled, so it is not apt to say that a wrong reflecting that lack of respect involves a loss. In the second type of case, the wrongdoer's respect for her victim remains undiminished, notwithstanding the fact that she transiently acts in a way that is disrespectful.
90. Miller's view is that apologies are compensatory, which makes sense if one is attracted to the metaphor of the scale for dignitary harms. See MILLER, supra note 81, at 88 ("Apology is a ritual, pure and simple, of humiliation. The humiliation is the true compensation."). However, it is worth preserving the nonmetaphorical distinction between apology and compensation, in part because we make fine-grained distinctions about the situations in which apologies are called for but compensation is not, and vice versa.
91. I do not mean to suggest that apologies are only called for in cases that involve dignitary harm. Dignitary harms are just helpful for framing the issue, since it is not obvious that they involve a loss that can be compensated.
92. See supra note 11 and accompanying text. 91. Which is not to say it has no value. See MILLER, supra note 81, at 87-90 (arguing that forced apologies are valuable to recipients because of the pain and humiliation felt in giving them).
93. See Daniel W. Shuman, The Role of Apology in Tort Law, 83 JUDICATURE 180, 186 (2000) (discussing the temporal dimension of apologies).
94. For a review of the relevant evidence, see Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 HARV. NEGOT. L. REV. 349, 358-63 (2008).
95. See Relis, supra note 11, at 723 fig.4; see also Charles Vincent et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 LANCET 1609, 1612 tbl.5 (1994) (finding that some plaintiffs thought litigation would have been prevented if they were given an explanation and an apology). I am indebted to Robbennolt, supra note 93, at 359 n.33, for this reference.
96. See Robbennolt, supra note 93, at 352 ("Apologies can be distinguished from other forms of accounting in that they acknowledge responsibility for the conduct that caused the harm.").
97. Again, you could imagine tweaking Potter's spell to do justice in all the ways that tort law does, but the possibility that Potter could cast a different spell is beside the point. His spell is constructed to do just what corrective justice theorists tell us tort aims at.
98. Philosophers have a wider conception of tort's substantive rules. As noted before, they criticize economists for failing to explain tort's bilateral structure. See supra note 70 and accompanying text. Still, the corrective justice account leaves many features of tort unexplained, including the procedures by which claims are processed and the diversity of remedies on offer. On the difficulty corrective justice has explaining the full run of tort remedies, see Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 710-13 (2003).
99. See Don Herzog, Comment on Jeremy Waldron's Tanner Lecture 2-3 (April 22, 2009) (unpublished manuscript) (on file with author).
100. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 766 (2002) ("Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit."); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (explaining that qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial").
101. There are also several sorts of non-official immunity, among them charitable immunity and interspousal immunity. These raise a slightly different set of issues, as they are typically immunities from liability, not suit, but they are also relatively rare.
102. In federal courts, the Supreme Court's recent decisions in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), cast doubt on the viability of notice pleading. They do not, of course, single out tort plaintiffs for special treatment, but they affect the practice of tort law in federal courts. In state courts, plaintiffs in tort suits face many different sorts of hurdles, ranging from special pleading requirements to screening panels that review cases. See infra notes 103-104.
103. For a representative example, see Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 910-35 (2009). Bone briefly considers fairness issues associated with pleading standards, id. at 900-10, but he frames his discussion of Twombly by saying that it raises "a general problem of institutional design: how best to prevent undesirable lawsuits from entering the court system." Id. at 876.
104. See, e.g., GA. CODE ANN. § 9-11-9.1 (2010).
105. See, e.g., 24 ME. REV. STAT. ANN. tit. 24, §§ 2851-2859 (2010).
106. At this point, those tuned in to the tort literature may wonder about civil recourse theory, an alternative to both the efficiency and corrective justice accounts of tort. According to civil recourse theorists, tort law is not about what wrongdoers owe their victims. Rather, it is about what the state owes victims of legal wrongs-a civil avenue of redress. See John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA. L. REV 1625, 1643 (2002) ("The reason the court system makes available rights of action in tort cases is that the system is built on the idea that those who have been wronged are entitled to some avenue of recourse against the wrongdoer. But, in a civil society, private violence is not permitted, even where there has been a legal wrong. The state therefore ordinarily must make some avenue of recourse available to the victim. It does this through the courts, via the tort system."); Zipursky, supra note 97, at 752 ("[T]he law steadfastly insists that the state may not take its own initiative in seeing that corrective justice is done, and therefore casts doubt on the claim that doing corrective justice is what tort law is all about."). Civil recourse theory is attractive in no small part because its proponents emphasize structural features of tort that corrective justice theorists tend to overlook, not least the fact that tort empowers victims to hold wrongdoers accountable. See Jason Solomon, Equal Accountability Through Tort Law, 103 NW. U. L. REV. 1765, 1791, 1805-11 (2009) (highlighting the fact that defendants are "answerable" to plaintiffs in tort suits). I have focused my attention on the efficiency and corrective justice accounts of tort in part because they are the best developed and most influential. But I have left civil recourse theory offstage for another reason: I have doubts as to whether it is a freestanding theory of tort law. That is, I have doubts as to whether the principle of civil recourse is capable of accounting for tort's substantive rules, even as it sheds light on its structure. For reasons that are too complicated to take up here, I am inclined to think that civil recourse will be a component of the best corrective justice account, not a competitor to it. I expect to explore the relationship between civil recourse and corrective justice in future work.
107. See, e.g., COLEMAN, supra note 2, at 395 (stating that tort's administrative rules "are defensible because they provide the best chance of practically implementing corrective justice under less than ideal circumstances").
108. See Benjamin C. Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105, 136 & n.169 (2005) ("Properly understood and administered, punitive damages in tort law also compensate for discrete private injuries." (quoting Richard W. Wright, The Grounds and Extent of Legal Responsibility, 40 SAN DIEGO L. REV. 1425, 1431 (2003))).
109. See 2 DAN B. DOBBS, THE LAW OF TORTS § 381, at 1062 (2001).
110. See Zipursky, supra note 107, at 137 & n.172 ("Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as proof of the detestation of the jury to the action itself." (quoting Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (K.B.) 498-99)).
111. See id. at 136.
112. See, e.g., RIPSTEIN, supra note 83, at 150.
113. See, e.g., Posner, supra note 16, at 108-09 (arguing that wealth maximization explains tort doctrine better than corrective justice because the latter suffers from a "general lack of detail in the theory").
114. See LANDES & POSNER, supra note 1, at 8 ("[T]he noneconomic literature does not provide an alternative positive theory of tort law to the economic theory expounded in this book.").
115. See Jody S. Kraus, Transparency and Determinacy in Common Law Adjudication: A Philosophical Defense of Explanatory Economic Analysis, 93 VA. L. REV. 287, 303-10 (2007); id. at 304 ("[D]eontic theories have long been embarrassed by the gap between their explanations of judicial reasoning and the outcomes of adjudication . . . . [I]f deontic theories appear to have a leg up on economic theories of the common law because they enjoy a more natural fit with its language and structure, economic theories appear to have the edge on deontic theories because their explanations of judicial decisions systematically yield more determinate results, at least in principle."). Kraus's argument is directed at theorists' explanations of judicial decisions in the first instance, but the reasons he gives for reading judges as using economic concepts to decide cases would also support judges actually using them.
116. See COLEMAN, supra note 70, at 34-35 ("[M]uch of the content of the first-order duties that are protected in tort law is created and formed piecemeal in the course of our manifold social and economic interactions . . . . If I am right about this, then it seems unlikely that we could ever have a general theory from which we might derive the first-order duties protected by tort law.").
117. Though corrective justice may constrain the ways in which a wrong may be put right, it is implausible that it fully determines them, as what counts as putting matters right must be in part a function of what people accept as putting matters right.
118. You might think that the relative simplicity of the economic account is a reason to prefer it, but it is important to remember that the theoretical virtues of an account must be judged holistically, rather than issue by issue. There are many places where economists must add epicycles to account for the data. The best effort to explain, for example, why judgesspeak the language of morality rather than efficiency, see Kraus, supra note 114, is terribly complicated when laid against the corrective justice theorists' claim that judges use moral language because they are in fact invoking moral notions.
119. See id. at 304 n.37 (acknowledging that the economic approach is determinate in principle, but perhaps not in practice).
120. One of the most inadvertently amusing lines in the whole body of the common law is Judge Posner's lament in McCarty v. Pheasant Run, Inc., 826 F.2d 1554, 1557 (7th Cir. 1987): "For many years to come juries may be forced to make rough judgments of reasonableness, intuiting rather than measuring the factors in the Hand Formula . . . ."
121. Bernard Williams, A Critique of Utilitarianism, in J.J.C. SMART & BERNARD WILLIAMS, UTILITARIANISM: FOR AND AGAINST 75, 148 (1973). Both presuppositions are on display in KAPLOW & SHAVELL, supra note 21, at 454. Max Etchemendy suggested these references.
122. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974).
123. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 10.
124. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 9-10.
125. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 9.
126. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 10.
127. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974).
128. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 24.
129. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 22.
130. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974).
131. P.F. STRAWSON, FREEDOM AND RESENTMENT AND OTHER ESSAYS 22 (Routledge 2008) (1974). at 23.
132. See Kyle D. Logue, Coordinating Sanctions in Tort 2 (Univ. of Mich. Law &Econ., Olin Working Paper No. 09-014, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430596 ("Viewed [from the perspective of cost minimization], tort law is just another regulatory tool, akin to Pigovian taxes or command-and-control regulations, which policymakers can deploy to help manage the problem of negative externalities.").
133. Far from it-safety regulations protect people in ways that tort cannot. The point is not that we should have tort and no regulation. Rather, the point is that tort engages and respects an aspect of our moral agency that most regulatory schemes do not. Greg Keating pressed this point.
134. STRAWSON, supra note 121, at 24.
135. This objection was put to me most forcefully by Scott Shapiro and John Wit 135. Even if they are right to treat tort as a regulatory scheme, their failure to take account of its collateral costs and benefits undermines the claims they make about that scheme.
136. See supra notes 11, 94, and accompanying text.
137. See supra note 12.
138. See Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 16, at 387, 388 (noting the possibility that liability insurance transforms an otherwise unjust system into a just one).