Wednesday, September 14, 2011
Greg Keating (USC) has posted The Priority of Respect Over Repair to SSRN. The abstract provides:
Contemporary tort theory is dominated by a debate between legal economists and corrective justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest-cost-avoiders and avoidable future losses. Rational actors recognize that the past is beyond their control. They ignore sunk costs – the consequences of past wrongs – and focus on influencing the future. Holding people accountable for having inflicted past harm makes sense only as a way of creating the proper incentives to avoid future harm. The right people to hold responsible for past harm, therefore, are not those whose wrongs are responsible for that harm, but those who are in the best position to avoid future harm efficiently. Properly understood, then, tort is about providing the proper incentives to minimize the combined costs of paying for and preventing future accidents. Tortfeasors responsible for past wrongs are false targets for cheapest cost-avoiders going forward.
Corrective justice theorists have argued powerfully that this economic account does not capture the most fundamental fact about tort adjudication, namely, that the reason why we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm that they have done. You can no more recover from someone in tort by showing only that they are the cheapest cost-avoider with respect to a class of future wrongful losses than you can convict someone of a crime by showing only that their conviction will deter future crime. People are liable in tort when and because they commit tortious wrongs just as they are punishable for crimes when and because they commit those crimes. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent.
This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse. To be sure, reparation looms large in tort. Rights require remedies, and reparation for harm wrongly done is the most common tort remedy. Yet in tort law itself, remedial responsibilities arise out of failures to discharge antecedent responsibilities not to inflict injury in the first instance. Tort is a law of wrongs, not just a law of redress for wrongs. In the first instance, it enjoins respect for people’s rights. Remedial responsibilities in tort are thus subordinate, not fundamental. By itself, the principle that wrongful losses should be repaired is incomplete; its application presupposes an antecedent account of wrongs. Logically and normatively, obligations of repair are dependent on primary obligations. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary ones. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Breaching primary responsibilities leaves those responsibilities undischarged, and puts the breaching party in a position where it is no longer able to discharge its primary responsibilities in the best way possible. Remedial responsibility is thus grounded in the failure to comply with primary responsibility. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential, but subordinate, aspect of tort.
The Priority of Right over Repair develops this line of criticism of corrective justice theory in detail, and offers an alternative account of tort which places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is – as the corrective justice theorists rightly insist – a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with establishing the autonomy and security of persons in civil society with respect to one another.