Wednesday, March 31, 2010
TortsProf's Sheila Scheuerman has been awarded tenure at the Charleston School of Law!
Sheila has published widely on class actions and punitive damages. Her most recent work focuses on the requirement of harm for tort causes of action. We congratulate Charleston on its decision.
--Bill and Chris
The first issue of the Journal of European Tort Lawis now available, and there is free online access for a limited time. The table of contents and the online access details follow:
JETL 2010, Issue 1 - Contents:
Helmut Koziol/Ken Oliphant, Preface (2010) 1 JETL 1
Lord Bingham of Cornhill, The Uses of Tort (2010) 1 JETL 3
Nils Jansen, The Concept of Non-Contractual Obligations: Rethinking the
Divisions of Tort, Unjustified Enrichment, and Contract Law (2010) 1
Vaia Karapanou/Louis Visscher, Towards a Better Assessment of Pain and
Suffering Damages (2010) 1 JETL 48
Michael G Faure/Niels J Philipsen, Fees for Claim Settlement in the
Field of Personal Injury: Empirical Evidence from the Netherlands (2010)
1 JETL 75
Ulrich Magnus, Why is US Tort Law so Different? (2010) 1 JETL 102
Free Online Access:
The entire content of the first issue is available for free online for a
limited time to anyone who registers on the website:
http://www.degruyter.de/journals/jetl/detailEn.cfm/. On registration, you will be sent an
email confirmation with a link to activate your online access. The links
will not work until you have done so. Please take a look - and encourage
your colleagues and students to do so too! I hope you like what you see.
I also hope that those of you with relevant research interests will
submit suitable papers to the Journal for publication.
See here for further info and links:
The Journal will be officially launched at next week's Annual Conference
on European Tort Law, for which registration is still possible:
Thanks to Ken Oliphant for the tip.
Tuesday, March 30, 2010
As I mentioned in Friday's Roundup, fifteen states are suing the federal government over the recently enacted health reform law.
Ohio is not one of those states, and in a National Law Journal article published yesterday, the Ohio AG explains his decision not to join those suits.
Mike Rustad asked that we post the following:
Dear Law Faculty,
As you may have heard, the University of Maryland School of Law is under attack by a group of legislators unhappy with the work of the Environmental Law Clinic. Specifically, the legislators seek to stop the clinical faculty and students from working on a case that alleges pollution by a poultry corporation by denying funding to the law school until and unless the law school turns over information about the clinic operation, including confidential client information. The Baltimore Sun reported on the problem... [Ed. note: ABA Journal also reports on this story]
This is a clear attack on both the professional responsibility and academic freedom of the clinical faculty and their students. Rather than have the legal issue of the poultry company resolved in the courts pursuant to the rule of law, a group of the legislators are doing the bidding of the business and they seek to use the denial of state funding to intimidate the law school dean and faculty. If the Maryland Legislature succeeds in this effort, it will set a dangerous precedent that could spread to other states. If you agree that law faculty and deans should stand up and help the University of Maryland School of Law, please reply privately to Peter Joy at firstname.lastname@example.org to have your name added to the following [attached] letter: Download Peter Joy Letter When you reply, please list your name and title as you would like it to appear at the end of the following letter. If you disagree with any portion of the letter, and would prefer to send your own personal e-mail, the list of state legislators e-mail addresses are [attached]: Download Maryland_Legislators
Please act now. This matter will be considered by the Maryland State Legislature this week.
Thank you very much.
Peter A. Joy
Washington University in St. Louis
One Brookings Drive, Campus Box 1120
St. Louis, MO 63130
(314) 935-6445 phone
(314) 935-4029 fax
Monday, March 29, 2010
Foreseeability often gets a bum rap in tort. As ephemeral as foreseeability by nature plainly is, most of us appreciate how important the concept is in shaping the outer boundaries of negligence responsibility. Courts widely assert that foreseeability resides importantly in duty, and that recoverable harm, to be compensable, must be classifiable as foreseeable. Of central importance, though often simply ignored, is the fact that the very notion of breach of duty—of legal “wrongdoing”—involves a blameworthy choice to act one way rather than another in the face of the foreseeable consequences of the actor’s contemplated action and its alternatives.
Only recently have I come to realize how deep the roots of foreseeability are in providing negligence law with moral succor. Thanks to a conference at Wake Forest last April marking the conclusion of central work on the Restatement (Third) of Torts, hosted by Reporters Mike Green and Bill Powers, Ben Zipursky and I both had an opportunity to focus closely (me, for the first time) on the role of foreseeability in negligence law. Ben and I both concluded that foreseeability properly plays a larger, deeper role in negligence law than the Third Restatement and many commentators believe it should. While Ben focuses closely on the internal coherence of tort law, my focus is on its moral power. And so I was struck by the salience of Jim Henderson’s remarks, in his perceptive March 15 guest blog, reminding us that “at its core, tort law’s purpose is to help to define what is just, right and fair” according to “relational notions of right and wrong.”
The other side of conduct that is “right and fair,” of course, is wrongdoing, the central feature of the tort of negligence. Wrongdoing suggests that an actor chose to act in a way that violated some norm of proper behavior (say, failing to adhere to customary behavior in a particular relationship or failing to accord equal respect to the interests of a stranger) rather than in an alternative way that would have avoided the kind of harm the actor caused. Ascribing moral character (blame or praise) to a choice to risk or avoid the risk of harm implies the actor’s ability to conceive (“foresee”) the consequences of the chosen action. It seems fundamentally unfair, and quite illogical, to blame a person for failing to avoid a consequence he or she could not imagine. Foreseeability thus is inextricably bound up in the notion of wrongdoing, which includes the notion of how far responsibility for wrongdoing should extend.
Foreseeability, I think, also belongs in judicial duty determinations, although the Reporters for the Third Restatement disagree, reasoning that foreseeability is intrinsically factual and so should be left to breach of duty determinations for juries alone to decide. Courts, however, routinely state that foreseeability is the first inquiry in duty determinations, and I think they are right, since it makes little sense to me to impose duties on people to avoid risks of harm they fairly cannot be expected to contemplate. While I agree with the Reporters that judges ordinarily should not use the foreseeability issue in duty determinations to hide factual or important policy choices, I believe that courts correctly consider the foreseeability of certain types of risk at an abstract, categorical level just as they so consider other reasons for defining types of situations where the normal principles of negligence law should not tread.
In teaching tort law over the years, I now realize that I may have failed to give foreseeability its due. During the preliminary examination of negligence concepts, I normally stop to linger on the Hand formula (with delight, if perhaps a bit too long), dwelling on some of the many hidden mysteries in B, and P, and L, but typically paying little heed to the small child crouching in the shadows—foreseeability. While I do touch briefly on the notion of foreseeable risk in these early days of negligence inquiry, my usual thought is that I’ll return to it—and address it fully—down the road when we get to proximate cause, at which time foreseeability rears its head hesitatingly in Polemis, proudly in Wagon Mound I, and then powerfully in Palsgraf. It is then (and only then) that I normally return my students to a consideration of the role of foreseeability in breach, reviving a focus on the Hand formula where foreseeability enhances the inquiry in suggesting negligence if B < (f) P x L.
This delayed approach to foreseeability may be necessary in allowing the burgeoning legal minds of first-semester students time to develop some preliminary blossoms of negligence understanding, but I now am thinking that I should dwell a bit more in those earlier classes on how the blameworthiness of a choice to act one way rather than another rests necessarily on the foreseeable consequences of the choice, be those consequences good or bad. Putting aside whether negligence should be defined primarily in terms of costs and benefits, section 3 of the Third Restatement—thanks to the considered efforts of initial Reporter Gary Schwartz—now helpfully defines negligence in terms of foreseeable consequences—the foreseeable likelihood of injury, and its foreseeable severity (in Hand formula terms, the foreseeability of both P and L). For torts teachers who provide the section 3 definition to their students, foreseeability now will squarely be on the table at the inception of the inquiry into how a norm of proper behavior should be defined. Although I still probably will defer much of the discussion on the deeper mysteries of foreseeability in my own torts classes until we examine proximate cause, I am glad the new Restatement gives such prominence to a feature I believe to be the moral glue of the concept of wrongdoing in the law of accidents.
--David Owen, Carolina Distinguished Professor of Law
University of South Carolina School of Law
Friday, March 26, 2010
Reform, Legislation, Policy
- Fourteen states have sued federal government over health reform bill. A joint lawsuit was filed in federal court in Florida on behalf of Florida, South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Louisiana, Idaho, Washington and Colorado. (Copy of the complaint (pdf)). Virginia filed a separate suit as well. (Copy of VA complaint (pdf)). Coverage is extensive. (AP, WSJ Law Blog, BLT, CNN, Philly Inquirer, Salt Lake Tribune, National Law Journal)
- White House officials respond to the States' law suit. (BLT)
- FDA seeks comment on potential restrictions on outdoor tobacco advertising. (FDA Law Blog)
- Georgia Supreme Court strikes down cap on non-economic damages. (Court Opinion (pdf), Point of Law, Day on Torts, Atlanta Journal Constitution, WSJ Law Blog)
- United States Court of Apeals for the Fifth Circuit finds plaintiff can't prove Requip caused plaintiff's gambling. (Drug & Device)
Trials, Settlements and Other Ends
- Plaintiff loses first Seroquel trial to go to a jury verdict. (Boston PI Lawyer Blog)
- Federal district court in Pennsylvania denies medical monitoring class action. (Mass Tort Defense)
- Headmistress's defamation suit against Oprah settles. (Texa Lawyer)
- NC jury awards $9 million in alienation of affection suit. (Greensboro News & Record, Turley)
- FL jury awards $26.6 million to smoker's widow. (Links collected at Cal Punitive Damages)
Thanks to Alan Crede for material this week.
Thursday, March 25, 2010
David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina School of Law, where he teaches courses and seminars on Tort Law, Tort Theory, and Products Liability. Prior to teaching, Professor Owen received degrees in economics (Wharton) and law from the University of Pennsylvania, was law clerk for the Chief Justice of the New Hampshire Supreme Court (the Honorable Frank R. Kenison), and practiced law in Denver (Holland and Hart). Other than South Carolina, Professor Owen has taught at the Universities of Alabama, Indiana, Michigan, Nebraska, and Texas; Oxford University, England; Santa Anna University, Pisa, Italy; and the University of Navarra, Pamplona, Spain. In addition to numerous journal articles, Professor Owen authored, co-authored, and edited various books, including a hornbook/treatise, Products Liability Law (Thomson/West 2008, 2005); Products Liability in a Nutshell (Thomson/West 2008, 2005); the leading casebook, Products Liability and Safety (Foundation Press 2007, 2004, 1996, 1989, 1980); a products liability treatise, Madden & Owen on Products Liability (3 volumes, West 2000); a theoretical work, Philosophical Foundations of Tort Law (Oxford Univ. Press, ed. 1994); and Prosser & Keeton on Tort Law (West 1984). He has advised Congress, state legislatures, the British Law Commission, and the European Union on various products liability and tort law matters. Furthermore, he is an Adviser to the American Law Institute on the Restatement (Third) of Torts, and he was the Editorial Adviser for the Restatement of Products Liability.
Wednesday, March 24, 2010
Lawrence Cunningham (GW) has posted to SSRN Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions. The abstract provides:
This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. It evaluates prominent opinions of two judicial exemplars of the contending conceptions, the traditionalist Benjamin Cardozo and the economist Richard Posner, in torts, the field where economic analysis has greatest impact. Comparative critique of their opinions appearing in current torts casebooks, where they are the most ubiquitous judges, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law.
We're a little late with this story, but on Monday the Georgia Supreme Court struck down the state's $350,000 noneconomic damages cap for med mal cases. The court held the cap improperly interfered with the jury's role is assessing damages. Coverage: NYT, LegalNewsline, Atlanta Journal-Constitution.
Tuesday, March 23, 2010
On Monday, the U.S. Chamber of Commerce's Institute for Legal Reform ("ILR") released its annual survey (pdf) "ranking the states with the best and worst legal climates in the country."
At the bottom this year are West Virginia (50th), Louisiana (49th), Mississippi (48th), Alabama (47th) and California (46th).
The "best legal climates" are in Delaware (1st), North Dakota (2nd), Nebraska (3rd), Indiana (4th), and Iowa (5th).
We joined Byron Stier (Southwestern) at Brown University last weekend on a panel on "Pluralism in Tort Law and Litigation" at the Association for the Study of Law, Culture and the Humanities Annual Conference.
Our thanks to the panel's moderator and organizer, Alan Calnan (Southwestern), for inviting us to participate. In a truly Herculean effort, Alan flew back from Providence on Saturday afternoon, and competed in the Los Angeles Marathon on Sunday. Congratulations to Alan for successfully completing the marathon!
- Sheila and Chris
Monday, March 22, 2010
Much of our thinking about torts rightly focuses on the conceptual landscape of substantive law. A significant related theme, however, concerns the legal principles that govern the ultimate cashing-out of tort claims. No context presents both the urgency and the challenges of that process more starkly than the resolution of mass tort claims. The menu of available vehicles to organize such a resolution plays a major part in mediating between tort law in a doctrinal sense and tort law in its on-the-ground operation.
Writing at the intersection of torts and complex litigation procedure, I suggested in a 2007 monograph that we may understand developments concerning the resolution of mass tort claims in recent decades in institutional terms. The law has been searching for an institutional vehicle to legitimize the resolution of tort claims on a mass basis – and, no small feat, to do so in such as way as actually to deliver closure in the area of litigation at hand. If one were to imagine a continuum of such vehicles, then they would start on one end with notions of individualized consent in the private law of contracts. Ordinary individual settlements of tort claims – as for civil claims generally – take their legitimacy from consent in the sense understood in contract law. The other end of the continuum, if one will, ranges all the way to public legislation – literally so, in the case of the 9/11 victim compensation fund.
If anything, the limitations of the two end points along the continuum are the converse of one another. Individual settlements are relatively easily had but do not deliver much in the way of closure for mass tort litigation as a whole. Public legislation may achieve much in the way of closure but is not easily had in political terms. As a result, the most interesting points along the continuum of institutional vehicles are not its end points but, rather, an array of less well understood arrangements in the middle. Until recently, these have consisted of aggregate settlements, class action settlements, and reorganizations in bankruptcy.
In recent years, a new arrangement has emerged, to the point of spawning what is now an emerging scholarly literature about its operation and legitimacy. The 2007 settlement arrangement used to resolve mass tort litigation over the prescription pain reliever Vioxx exemplifies this new development. The Vioxx deal is striking in that it did not actually resolve a single extant Vioxx claim. The contracting parties were not the defendant manufacturer Merck & Co. and any individual Vioxx plaintiff. Rather, the contracting parties consisted of Merck and the small number of law firms within the mass tort plaintiffs’ bar with significant inventories of Vioxx claims. The signatory firms obligated themselves to “recommend” participation in the compensation framework described in the agreement to 100% of their individual clients. Were any given client to decline the advice to take the deal, the signatory firm obligated itself – “to the extent permitted by” legal ethics – to disengage from the representation of that client. For its part, Merck committed a fixed sum of $4.85 billion to the deal, contingent upon a take-up rate of at least 85 percent on the part of Vioxx plaintiffs overall. This condition was easily met, with over 99 percent of plaintiffs ultimately enrolling in the deal.
Given the checkered history of peacemaking efforts for mass torts, 99-percent closure is no small achievement. Yet this very success – the realization of a “mass settlement without class actions,” in the words of one prominent lawyer on the plaintiffs’ side– is precisely the source of consternation for critics of the Vioxx deal. For critics, the Vioxx deal exemplifies a deeply troubling trend toward the exalting of closure in mass torts to the detriment of legitimate consent. In the most thoughtful and provocative exposition of this critique in the scholarly literature to date, Howard Erichson and Benjamin Zipursky contend that individual client consent in the Vioxx deal is illusory. On this view, the deal placed the signatory law firms’ business interest in garnering one-third or more of the $4.85 billion that Merck had put on the table against their ethical obligation to render legal advice tailored to the specific situations of their individual clients. Even worse, critics contend, the deal coerced dissenting clients with the disheartening prospect of starting anew with a different lawyer, if one could be found at all.
Viewed from an institutional standpoint, an important scholarly debate has now emerged. The debate effectively asks how to allocate the uncharted conceptual terrain between conventional individual settlements and class settlements – the latter being largely off the table as viable settlement arrangements for mass torts after the Supreme Court’s Amchem and Ortiz decisions from the late-1990s. Should the uncharted terrain, in effect, be allocated entirely to notions of individualized client consent drawn from the ancestral past of tort litigation in conventional one-on-one disputes? Or is the challenge for the law today better understood in terms of a search for a hybrid conceptualization of consent, in keeping with the position of arrangements like the Vioxx deal between notions of private contract and public law, not at the end point of the former?
Several new additions to the torts literature point in various ways toward such a hybrid conception, building on a 2008 article by Samuel Issacharoff. In a forthcoming article on the Vioxx settlement as well as developments in the constitutional law of punitive damages, I offer my own suggestion that hybridization is likely to be watchword for the future. In a thoughtful new essay, Alexandra Lahav challenges the notion that the “rough justice” associated with non-class-action aggregate treatment of mass torts marks a meaningful deviation from tort law in operation today. And, in one of the latest in an important series of articles, Elizabeth Chamblee Burch draws on interdisciplinary research to envision a more ground-up, less lawyer-centered conception of collective client identity in the mass tort context.
The proverbial game is on over the future of mass tort claims resolution. Its outcome promises to bear significantly on how the law translates the rich concepts of tort doctrine into practical operation.
- Richard A. Nagareda
Professor and Director, Cecil D. Branstetter Litigation & Dispute Resolution Program,
Friday, March 19, 2010
A short week, since this is my spring break and I'm at the Cape (for the first time!).
Reform, Legislation, Policy
- Rather than trying to choose representative posts about the role of tort issues in the health care debate, maybe I'll just point you to the Google News results for "tort reform."
- On taxing punitive damages (TortsProf)
- Walter Olson takes a preemptive strike against the Toyota suits, based in part on research done by Ted Frank. (National Review Online; see also this Atlantic piece)
- In the dog-didn't-bark category (if that's the right use of that phrase), a couple of years ago, I did a much-linked-to post about a teen who was hit and killed by a roller coaster train after he jumped at least one fence, passing by fairly emphatic warning sign. At the time, his survivors and their attorney were making noises as if a lawsuit was coming; so far as I can tell, that hasn't happened.
- Interesting summary judgment reversal on a go-kart injury case (MassTort.org)
- Potential settlement in 9/11 Responders suit (TortsProf & links therein)
- Happy birthday to William Prosser! (TortsProf)
- Theme park, closed since 1993, owes big money for 2005 injury on the property (MassTort.org)
- Miller & Zois has a weekly pharma-related roundup (Drug Recall Lawyer Blog)
- It's an Iqbal Extravaganza! (Drug & Device Law Blog)
Thursday, March 18, 2010
Nagareda joined the Vanderbilt faculty in 2001. Before joining the Vanderbilt faculty, Nagareda taught on the faculty of the University of Georgia School of Law and as a visitor at the University of Texas School of Law. Before joining the academy, Nagareda clerked for Judge Douglas H. Ginsburg, of the D.C. Circuit, and practiced in the Office of Legal Counsel of the United States Department of Justice and as an associate at Shea Gardner in Washington, D.C.
At Vanderbilt, Nagareda teaches courses on evidence and complex litigation and a year-long seminar for third-year students on the civil litigation system. He has been recognized with the Hall-Hartman Award for Excellence in Teaching, an award based on students' votes, most recently in 2009, and he held the Tarkington Chair for Teaching Excellence, a three-year appointment, from 2006-09.
Nagareda's recent scholarship explores the impact of class action lawsuits on the pursuit of legal rights. In 2003, he was appointed as Associate Reporter for the American Law Institute project on Principles of the Law of Aggregate Litigation. His scholarly works are too numerous to list. Recent work includes Mass Tort in A World of Settlement (U. Chigao Press 2007), "Aggregate Litigation across the Atlantic and the Future of American Exceptionalism,” 62 Vanderbilt Law Review 1 (2009), Class Certification in the Age of Aggregate Proof,” 84 New York University Law Review 97 (2009), Class Actions in the Administrative State," 75 University of Chicago Law Review 603 (2008), and "Class Settlements under Attack," 156 University of Pennsylvania Law Review 1649 (2008) (with Samuel Issacharoff).
Wednesday, March 17, 2010
Gregg Polsky & Dan Markel (both Florida State) have posted to SSRN Taxing Punitive Damages. The abstract provides:
There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believed they deserved to pay.
To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our view, however, such a blanket nondeductibility rule would, notwithstanding its theoretical elegance, be ineffective in solving the under-punishment problem. In particular, defendants could easily circumvent the nondeductibility rule by disguising punitive damages as compensatory damages in pre-trial settlements.
Instead, the under-punishment problem is best addressed at the state level by making juries “tax aware.” Tax-aware juries would adjust the amount of punitive damages to impose the desired after-tax cost to the defendant. As we explain, the effect of tax awareness cannot be circumvented by defendants through pre-trial settlements. For this and a number of other reasons, tax awareness would best solve the under-punishment problem even though it does come at the cost of enlarging plaintiff windfalls. Given the defendant-focused features of current punitive damages doctrine, this cost is not particularly troubling. Nonetheless, a related paper of ours furnishes a strategy for overcoming this tradeoff through some basic reforms to punitive damages law.
Monday was William Prosser's birthday (he was born in 1898 in New Albany, Indiana). Just in time to celebrate, Neil Richards (Washington University) and Daniel Solove (GW/CoOp) posted to SSRN Prosser's Privacy Law: A Mixed Legacy. The abstract provides:
This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.
Solove's post at CoOp about the article is here.
Additionally, my piece, The Prosser Notebook, was published last week. The final version is available here.
Tuesday, March 16, 2010
The New York Daily News reports on the $575 million settlement reached in the 9/11 "first responders" lawsuits. As the Daily News reports, Judge Hellerstein has delayed his approval and instead is "taking a week to figure out how big a cut the lawyers will get." Judge Hellerstein has also scheduled a fairness hearing for April 12th.
Alexandra Lahav (UConn/ Visiting Fordham) has posted "Rough Justice and the Problem of Value in Tort Law" on SSRN. The abstract provides:
This Essay argues the counterintuitive position that in our tort system, individual justice is rougher than justice on a mass scale. The reason for this is that mass tort cases can be resolved collectively using rigorous transparent social science methods that can ensure equal treatment of similarly situated litigants. Individual justice, by contrast, allows cases to be resolved in a largely hidden system of comparative valuation using loose methods that are unlikely to result in like cases being treated alike. To do justice courts must use rigorous, transparent methods of case valuation.
In addition to this key insight, this Essay makes two contributions. First, it demonstrates a pragmatic way of thinking about procedural justice by measuring existing procedures against widely recognized principles. In this case, I compare sampling procedures with principles of equality, fairness and distributive justice. Second, it uncovers a pernicious assumption that has been heretofore ignored by scholars: contrary to popular belief, there is no objective way to monetize injuries. All justice in tort cases is rough justice. This is the problem of value in tort law. The solution to this problem is properly administered sampling procedures.
Monday, March 15, 2010
Up until recently I was agnostic on the question of whether tort law reflects ends-in-themselves moral values or is simply a positive manifestation of the instrumental means with which to achieve politically-selected social welfare ends. I am now persuaded that the first of these is correct—tort law rests on a noninstrumental moral base. Because economic analysis offers plausible explanations of much of what tort law seeks to achieve, I am indebted to Ernie Weinrib (Deterrence and Corrective Justice, 50 U.C.L.A. L. Rev. 621) for explaining how, by relying on a conceptually sequenced argument, tort law can have a moral base and nevertheless embrace a deterrence-based implementation apparatus that is consistent with much of what law and economics has to say about tort. Fairness principles trump efficiency when the two are at odds; but once fairness concerns are adequately addressed, tort law is free to pursue efficiency objectives.
I reserve this “fairness at the core” assessment for the “regulatory” elements of substantive law—tort law, criminal law, individual constitutional rights, and the like. Regarding “constitutive” or “enabling” elements of substantive law—contracts law, property law, business organizations, constitutionally-established structures of government—I take a positivist instrumental view. The substantive rules governing these areas supply the practical means by which individuals and groups are empowered to achieve their own, sometimes politically chosen, ends and goals. They do not, as does tort, primarily focus on what is right or wrong. Of course, constitutive areas of law contain regulatory, fairness-based sub-rules within them. For example, contracts law contains limited moral-based elements of tort. But I believe that this constitutive/regulatory distinction holds up reasonably well under analysis.
As for the legal system viewed more broadly, I adopt a positivist, means-to-human ends approach. I am indebted to Lon Fuller (The Morality of Law) for his distinction between the external and the internal moralities of law. (Internal moral principles apply to the processes by which law guides human conduct.) Fuller, who was still teaching at the Harvard Law School when I was a student in the early 1960s, took a natural-law, fairness-based view of internal morality; but he adopted a positivist, means-to-ends view of the external morality of law. In any event, I agree with Fuller that the proper positivist view of our legal system is not one based on a manifested (even if legitimated) threat of force or exercise of social power, but rather is based on cooperative efforts to achieve shared social purposes.
Thus, I now believe that the law of torts imbedded within our legal system is based on, and at its core reflects, noninstrumental principles of fairness—relational notions of right and wrong. I have not worked out exactly what those notions are—I probably don’t have the necessary skill-set and I may not live long enough to make peace with it. But from here on out I prefer to view tort cases as essentially morality plays rather than as merely efforts to assist in the efficient allocation of scarce resources. Weinrib has convinced me that in many (most?) instances tort cases can be both; but at its core, tort law’s purpose is to help to define what is just, right and fair.
- James A. Henderson, Jr.
Cornell Law School
Frank B. Ingersoll Professor of Law