The priority of respect over repair

Legal Theory

Volumn 18, Issue 3, 2012, Pages 293-337

  Keating, Gregory C ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 84877014341     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325212000031     Document Type: Article

References (83)

1. For an overview of these developments
2. see G. EDWARD WHITE, TORT LAW IN AMERICA (expanded ed. 2003), esp. chs. 3-6 and 8. For a particularly eloquent indictment of tort as the scene of revolutionary developments
3. see George L. Priest, The Invention of Enterprise Liability, 14 J. LEGAL STUD. 461 (1985).
4. "[C]ost to an economist is a forward-looking concept. 'Sunk' (incurred) costs do not affect a rational actor's decisions. Rational people base their decisions on expectations of the future rather than on regrets about the past. They treat bygones as bygones." RICHARD POSNER, THE ECONOMIC ANALYSIS OF LAW (7th ed. 2007), at 7.
5. "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." GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970), at 26
6. See also ROBERT COOTER&THOMAS ULEN, LAW AND ECONOMICS (5th ed. 2007), at 359 (refining the criterion to include administrative costs).
7. Scott Hershovitz, for example, stresses the remedial role of tort as an institution and as a process through which we hold others to account and express our mutual answerability to one another
8. Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 STAN. L. REV. 67 (2010), at 95-96 (arguing that corrective justice often requires explanation and apology as well as the repair of wrongful losses). Jason Solomon develops similar ideas
9. Jason M. Solomon, Equal Accountability through Tort Law, 103 NW. U. L. REV. 1765 (2009).
10. See, e.g., Richard Epstein, A Theory of Strict Liability, 2 J.LEGAL STUD. 151 (1973) (applying the concept to an essentially causal form of liability). Fault is indispensable inWeinrib's account and is dispensed with by Epstein's. George Fletcher, for his part, applies the label "corrective justice" to a theory of liability for nonreciprocal risk imposition
11. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972). Catherine Wells takes the term to be concerned essentially with the process through which we should and in fact do determine
12. See the text accompanying notes 14 to 16 infra for an argument of this kind
13. Richard A. Posner, The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. LEGAL STUD. 187 (1981), at 201.
14. Without the assumption that tort law is otherwise efficient, this argument does not go through
15. See John Gardiner, Backwards and Forwards with Tort Law, in LAW AND SOCIAL JUSTICE 255 (Joseph Keim Campbell ed., 2005), at 269-270.
16. Isaiah Berlin quotes Jean-Jacques Rousseau's famous remark, "The nature of things does not madden us, only ill-will does"
17. I. BERLIN, TWO CONCEPTS OF LIBERTY (1958), at 2. This appears to be Berlin's own translation of a passage in Rousseau's EMILE
18. See J. ROUSSEAU, Emile, in 4 OEUVRES COMPLETE, 320 (B. Gagnebin & M. Raymond eds., 1959). Rawls follows Rousseau's lead here in explicating what he calls "the sense of justice
19. See J. RAWLS, COLLECTED PAPERS (S. Freeman ed., 1999), at 96-116
20. See also P.F. STRAWSON, Freedom and Resentment, in STUDIES IN THE PHILOSOPHY OF THOUGHT AND ACTION 71 (1968) (showing that "reactive attitudes" such as resentment are fundamental to our sensibilities and cannot be accounted for by instrumentalism).
21. Jules Coleman, Theories of Tort Law, STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2003) ("From the normative point of view, the most basic relationship in torts is that between the injurer and the victim whom he has wronged.").
22. ForWeinrib, this relationship expresses the "unity of doing and suffering," the intrinsic moral salience of the doer of harm as someone specially responsible for the harm that she has wrongly done. Weinrib's view appears more metaphysical than Coleman's in that it appears to take the structure of tort law to reflect an essential and eternal form of human interaction.
23. The second clause of this sentence refers to circumstances where tort law protects autonomy rights. Some batteries, trespasses, and conversions are cases in point. The last clause of the sentence describes the general character of strict liability in tort. For the sake of convenience, I refer to primary duties as "duties of harm avoidance," even though duties of harm avoidance are only the most common kind of primary duty in tort. The distinction between primary or substantive legal norms and remedial ones bears on tort in a particular form, but it is a general distinction
24. See, e.g., HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994), at 122 (emphases in original) explaining the general distinction in the following way: Every general directive arrangement contemplates something which it expects or hopes to happen when the arrangement works successfully. This is the primary purpose of the arrangement, and the provisions which describe what this purpose is are the primary provisions. Every arrangement, however, must contemplate also the possibility that on occasion its directions will not be complied with. The provisions of an arrangement which tell what happens in the event of noncompliance or other deviation may be called the remedial provisions. The distinction appears to be especially prominent in tort theory, in part because correctivejustice conceptions invite the objection I am developing here
25. See, e.g., Hanoch Sheinman, Tort Law and Corrective Justice, 22 LAW & PHIL. 21 (2003), at 32-34. Its importance is also due to the fact that tort has had to shake off the worry that it is not a freestanding body of law but a remedial appendage to other bodies of law
26. See Thomas C. Grey, Accidental Torts, 54 VAND. L. REV. 1225 (2001), at 1242-1244.
27. This possibility was suggested to me by both Martin Stone and Arthur Ripstein
28. See CALIFORNIA VEHICLE CODE § 22352(a)(2). Not all tort duties are sensitive to the numbers. While greater precautions may be necessary to make a skyscraper safe, the fact that skyscrapers house more people than single-family homes is not a reason to make the homes less safe.
29. See ROBERT STEVENS, TORTS AND RIGHTS (2007), at 328
30. Lucchese v. San Francisco-Sacramento Railroad, Co., 289 P. 188 (Cal. 1930).
31. For observations along these lines
32. see Neil MacCormick, The Obligation of Reparation, in LEGAL RIGHT AND SOCIAL DEMOCRACY 212 (1981)
33. and Joseph Raz, Personal Practical Conflicts, in PRACTICAL CONFLICTS: NEW PHILOSOPHICAL ESSAYS 182 (Peter Baumann & Monica Betzler eds., 2004). This line of argument is developed powerfully by John Gardner and dubbed "the continuity thesis"
34. John Gardner, What Is Tort Law For? Part I: The Place of Corrective Justice, UNIVERSITY OF OXFORD LEGAL RESEARCH PAPER SERIES, January 2010
35. Suppose, for example, that Arthur punches Jules in the nose without provocation, excuse, or justification. Arthur has battered Jules, breaching his obligation not to do so and violating Jules's right that he not do so. By battering Jules, Arthur has neither discharged his obligation not to batter Jules nor relieved himself of the responsibility to comply with that obligation. Arthur is still bound by the obligation that he has breached, but he has placed himself in a position where he cannot comply fully with its commands. Now the best that Arthur can do is to repair the harm. His duty of repair falls out of his failure to discharge his duty not to harm Jules wrongly in the first place.
36. The position in the text exaggerates in one important respect: if there were no tortious wrongs, the common law of torts could not develop, because it develops through adjudication. This collateral benefit of tortious wrongs is not, however, a reason that justifies their commission. It is merely a loss caused by their (hypothetical) disappearance.
37. See, e.g., Cass Sunstein & Richard Stewart, Public Programs and Private Rights, 95 HARV. L. REV. 1193 (1982). On amercement
38. see Calvin R. Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 VAND. L. REV. 1233, 1251-52 (1987)
39. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 286-92 (1989) (O'Connor, J., dissenting). For a brief but acute explanation of the relation of all of this to the emergence of tort
40. see Tom Grey, Holmes on Tort (n.d.), at 18-22 (unpublished manuscript) (on file with author).
41. "Generally an injunction will lie to restrain repeated trespasses." Planned Parenthood of Mid-Iowa v.Maki, 478 N.W.2d 637, 639 (Iowa 1991)
42. See generallyDANDOBBS, LAW OF REMEDIES: DAMAGES, EQUITY, RESTITUTION (1993), ch. 5 (noting, inter alia, that a plaintiff may be entitled to an injunction prohibiting a recurring trespass).
43. The award of punitive damages in Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), enforces the right to exclusive control by stripping the one-shot, harmless trespass in that case of the economic advantage that made its commission by the defendant rational. Defendant had dragged a trailer home across plaintiff's snow-covered property without plaintiff's permission. Because its trespass did no harm, defendant was otherwise liable only for nominal damages.
44. See Jeremiah Smith, Sequel to Workmen's Compensation Acts, 27 HARV. L. REV. 235 (1914), at 344 (arguing that the workmen's compensation acts were organized on the principle of strict liability, which could not be reconciled with the fault liability of the common law, and prophesying that the common law of torts would be reconstructed to be more compatible with the normative logic of workers' compensation). For further discussion
45. see Gregory C. Keating, The Theory of Enterprise Liability and Common Law Strict Liability, 54 VAND. L. REV. 1285 (2001)
46. Historically, the law of tort has been preoccupied with physical harm and thus with the right to physical security. Over time, however, the law of torts has come to grant more protection against psychological harm
47. See G. EDWARD WHITE, TORT LAW IN AMERICA (1985), at 102-106, 173-176 (discussing the expansion of liability for invasion of privacy and infliction of emotional distress). Thus the right that the text is referring to has transformed from a right to physical integrity toward a right to physical and some psychological integrity. For simplicity, I generally speak of this right as the right to physical or bodily integrity or security.
48. J. WALDRON, Rights in Conflict, in LIBERAL RIGHTS: COLLECTED PAPERS 1981-1991 (1993), at 203, 212 (explaining why "rights should be thought of, not as correlative to single duties, but as generating a multiplicity of duties.").
49. RESTATEMENT (SECOND) OF TORTS, § 1 cmt. d (1965). The right to bodily security thus grounds diverse tort obligations. I am grateful to Mark Geistfeld for calling my attention to this comment
50. JULES COLEMAN, RISKS AND WRONGS 395 (2002). The general idea of torts as wrongs is Blackstonian. Blackstone described acts that deprived people of rights as "wrongs." 3 BLACKSTONE, COMMENTARIES, *116, and explained that the remedial part of the law provides for the redress of wrongs. 1 BLACKSTONE, COMMENTARIES, *54. Whenever the common law recognized a right or prohibited an injury it also gave a remedy, initiated by filing the appropriate writ. 3 BLACKSTONE, COMMENTARIES, *123.
51. This statement may need to be qualified in the case of strict liability. In important cases of strict liability, justifiable harm is done, and the basic reason for imposing liability is to prevent the defendant from loading the cost of its justified conduct off on the plaintiff who does not benefit proportionately from that conduct. This raises the question of whether damages serve a corrective or a commutative role. They serve a corrective role if they rectify a wrong; a commutative one if they align burden and benefit
52. See the discussion in the text at notes 83-84, infra
53. I borrow the term "sovereignty-based" from Arthur Ripstein, Beyond the Harm Principle, 34 PHIL. & PUB. AFF. 216 (2006). He is not responsible for my usage. The shorthand distinction between "harm-based" and "sovereignty-based" torts is not meant to imply that the former do not involve rights whereas the latter do. The point, rather, is that some tort rights are grounded in harm, whereas others are grounded in autonomy. To put it in a more cumbersome way, we might call these torts "autonomy-rights-based torts" and distinguish them from "harm-rightsbased torts."
54. See Mohr v. Williams, 104 N.W. 12 (Minn. 1905)
55. Kennedy v. Parrott, 90 S.E.2d 754 (N.C. 1956). This prohibition against unconsented invasive medical procedures is a different aspect of the tort of battery.
56. See, e.g., Longenecker v. Zimmerman, 267 P.2d 543, 545 (Kan. 1954).
57. See generally L. Smith, Corrective Justice and Public Law (paper presented at the Obligations V Conference: Rights and Private Law, University of Oxford, July 14-16, 2010).
58. "Sovereignty-based" torts protect the exercise of powers, whereas "harm-based" torts ground duties whose protections are enjoyed. This distinction is drawn nicely in Leif Weinar, The Nature of Rights, 33 PHIL. & PUB. AFF. 223 (2005), at 233.
59. The exact content of what we owe to each other in the way of tort obligations depends on the jurisdiction in which we find ourselves, but the basis of our varying obligations is the same, namely, our equal personhood
60. Theorists are split on this point. Stephen Perry, for one, thinks that rights to the liberty and integrity of our person precede questions of distributive justice: "At least within nonconsequentialist moral theory, it makes sense to think of this [security] interest as morally fundamental, and hence as falling outside the purview of distributive justice
61. our physical persons belong to us from the outset, and are accordingly not subject to a social distribution of any kind." Stephen Perry, On the Relationship between Corrective Justice and Distributive Justice, in OXFORD ESSAYS IN JURISPRUDENCE 237 (Jeremy Horder ed., 4th ser., 2000), at 239. On this conception, the question of what rights people have is a question of justice but not a question of distributive justice. Other usages of the term distributive justice appear to include within its domain the question of what rights people have, on the ground that this is one kind of question about the distribution of entitlements. References to rights as concerned with the distribution of freedom in H.L.A. Hart, Are There Any Natural Rights?, 64 PHIL. REV. 175 (1955), at 178, fit this description, as does John Rawls's usage
62. See JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999) (1971), at 54 ("the basic structure of society distributes certain primary goods. the chief primary goods at the disposition of society are rights, liberties, and opportunities, and income and wealth.") (emphasis added). For an example of distributive justice being used in this broader sense in connection with private law
63. see Peter Cane, Corrective Justice and Correlativity in Private Law, 16 OXFORD J. LEGAL STUD. 471 (1996), at 481.
64. Keel v. Banach, 624 So.2d 1022, 1029 (Ala. 1993).
65. RESTATEMENT (SECOND) OF TORTS § 903 cmt. a (1979).
66. This is ironic, because strict liability "duties" are the only primary duties that might be plausibly described as corrective they involve obligations not to harm without repairing
67. Vincent v. Lake Erie Transp. Co., 124 N.W. 221 (Minn. 1910).
68. A complication lurks here. Because we believe harm may be done justifiably in cases of strict liability, and because the basic reason for imposing such liability is to prevent the defendant from loading the cost of its justified conduct off on the plaintiff who does not benefit proportionately from that conduct, there is a question of whether damages serve a corrective or a commutative role. They serve a corrective role if they rectify the wrong; a commutative one if they align burden and benefit. We cannot purse this question here.
69. The concept of "duties to succeed" is developed in John Gardner, Obligations and Outcomes in the Law of Torts, in RELATING TO RESPONSIBILITY: ESSAYS FOR TONY HONOŔE (P. Cane & J. Gardner eds., 2001).
70. Mohr v. Williams, 104 N.W. 12 (Minn. 1905).
71. One insight deserves special mention, even though we cannot do it justice here. Accidental harm is a social problem, not just a matter of wrongs. Those of us who champion the truth that torts are wrongs need to figure out how to do justice to this insight.
72. On an "interest theory" of rights, for example, the task will be to show that the interest of the right-holder is sufficient to justify imposing coercively enforceable duties on others
73. See Charles R. Beitz, The Moral Rights of Creators of Artistic and Literary Works, 13 J. POL. PHIL. 330 (2005), at 335-337 (and sources cited therein).
74. For a survey and summary of this and other accounts of harms, including the autonomy account endorsed in this paper
75. see Matthew Hanser, The Metaphysics of Harm, 77 PHIL. & PHENOMENOLOGICAL RES. 421 (2008)
76. See Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 LEGAL THEORY 117-148 (1999)
77. Seana Valentine Shiffrin, Harm and Its Significance, 18 LEGAL THEORY (2012). Tortious harms, of course, are marked by one more essential property: they are inflicted by some and suffered by others. This is an essential feature of tortious harms, because tort is concerned with what we may demand from each other as a matter of right, and rights hold only against other agents, not against natural forces
78. It is, I think, best to recognize that we can both distinguish the two kinds of torts or conflate them, but that we can do this only if we understand harm as serious impairment of agency. If we take a welfarist conception of harm, we will not be able to collapse the distinction
79. See Gregory C. Keating, Is Negligent Infliction of Emotional Distress a Freestanding Tort?, 44 WAKE FOREST L. REV. 1131 (2009)
80. See, e.g., Spur Indus. Inc. v. Del E. Webb Dev. Co., 494 P.2d 700 (Ariz. 1972) (flies and odor from cattle feedlot held to be a nuisance)
81. Berg v. Reaction Motors Div., Thiokol Chem. Corp., 181 A.2d 487 (N.J. 1962) (noise, vibration, and air blasts from test-firing a rocket engine constituted a nuisance)
82. O'Cain v. O'Cain, 473 S.E.2d 460 (S.C. 1996) (presence of hogs in front of plaintiff's residence was a nuisance)
83. Blackstone counted reputation among the fundamental rights comprising the right of personal security, but the tort may have since become less central in most accounts of the fundamental interests of persons. BLACKSTONE, COMMENTARIES, *129 ("The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, health and his reputation.").