Monday, November 9, 2009
What’s Wrong with Torts?
Torts are wrongs. The word “tort” means “wrong.” A standard definition of a tort is: “a civil wrong, other than breach of contract, for which the courts will provide a remedy.” And yet the particular sense in which torts are wrongs turns out to be difficult to pin down. Likewise, the failure of many modern torts scholars to grasp the distinctive characteristics of tortious wrongs, as opposed to other kinds of wrongs, has produced a good deal of confusion.
This, at any rate, is the argument of a forthcoming article that Ben Zipursky and I have co-authored. In this blog entry, I will briefly describe one of our basic claims. A later blog will describe others. Of course, any faults in this exposition are chargeable to me alone.
The Moral/Legal Dilemma
When we think of “wrongs” we might first think of conduct that is blameworthy for violating a moral norm. To swindle someone, or gratuitously strike him, is a wrong in this full-blooded sense. Are torts wrongs of this sort? Many are, but not all. Some conduct is tortious notwithstanding the absence of culpable conduct. Think of the faultless trespass that generated liability in Vincent v. Lake Erie. Or an injury-producing momentary lapse committed by an inveterately clumsy person.
One could try to write off these examples as outliers, but they are mainstream. As such, they seem to undercut the possibility of torts being moral wrongs. So torts must be “legal wrongs.” And yet the adjective “legal” in the phrase “legal wrongs” seems to suggest that, if torts are wrongs, they are wrongs merely by fiat – that is, only because a lawmaker has decided to attach liability to certain actions. So understood, the concept of a legal wrong seems vacuous.
Many tort scholars seem to have been gripped by the moral/legal dilemma. Among them, the dominant response has been to embrace the dilemma’s second horn and treat torts as merely nominal wrongs. In turn, they argue that tort law is not law that articulates wrongs and permits responses to them, but law that allocates losses in accordance with a notion of fairness or efficient deterrence.
Our view, by contrast, is that the dilemma is a false one. Torts are legal wrongs, not moral wrongs. But it doesn’t follow that anything can count as a tort. We don’t mean to deny that lawmakers enjoy the power to regulate irrespective of whether someone has done wrong. (A tax on permissible actions, such as home ownership, is not wrongs-based: the homeowner is not being made to pay for violating a directive to avoid injuring others in certain ways.) Our point is that there is a cogent and non-trivial conception of “legal wrong” that permits torts to be defined as legal wrongs without thereby sucking the content out of the idea of a wrong.
What is this conception? Here’s a first stab. Each tort is a legal wrong in that it: (i) violates a directive issued by a competent authority that (ii) identifies acts toward others (or failures to act) that (iii) are unacceptable insofar as they interfere with (or fail to preserve) certain important interests of others. A battery is a violation of a judicial directive not to touch others in ways that tend to be harmful, or that are commonly regarded as offensive. Negligence is primarily the violation of a directive not to cause physical harm to others through conduct that is careless toward them. A trespass is an intentional touching of land that interferes with the owner’s right of exclusive occupancy. These torts can sometimes be committed without a moral wrong having been done, yet they are always legal wrongs because they are always violations of directives of a certain sort.
Just to be clear, our claim is that torts are one (important) species of legal wrong, not the only one. (Crimes are another.) Next time I’ll try to refine our account by identifying some of the hallmarks of tortious wrongs.
--John C.P. Goldberg Professor of Law
--John C.P. Goldberg
Professor of Law