Friday, February 25, 2011
John Goldberg (Harvard) has posted to SSRN Tort in Three Dimensions. The piece was part of a Pepperdine symposium last spring, and the abstract provides:
Should our tort law serve as a model for other nations? The answer depends in part on what one understands it to be. Since the mid-Twentieth Century, progressives have favored 'thin' accounts that treat tort law as having but two dimensions: forum and function. Tort, they say, provides a general forum for grievances and, by doing so, performs certain governmental functions, such as deterrence of anti-social conduct, compensation of injury victims, and the bringing to light of abuses of power.
Progressives have favored thin accounts mainly because those accounts emphasize the extent to which tort law enables courts to achieve social goods. Unfortunately, the very thinness of progressive accounts has left tort law highly vulnerable to the conservative criticism that tort is an irrational and illegitimate mode of regulation. As a result, tort law today tends to comes off as an unstable, unprincipled combination of certain plaintiff-friendly features that are said to serve salutary regulatory objectives and certain defendant-friendly features that are said to be necessary to ward off undesirable regulation.
In fact, tort law’s "bipolar" appearance is an unfortunate byproduct of the inadequacies of two-dimensional accounts, whether progressive or conservative. Simply put, tort will inevitably appear arbitrary and mysterious until one appreciates its third dimension – its fill, or substance. Seen in "3D," tort law emerges as a relatively coherent body of law, yet still one that progressives have reason to embrace. Indeed, with tort law in full view, one might even believe that it can profitably be emulated elsewhere.