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Wednesday, January 18, 2012

Quandaries of Civil Recourse: Calnan Replies to Goldberg & Zipursky

Last month, Alan Calnan posed four quandaries for John Goldberg's and Ben Zipursky's civil recourse theory.  John and Ben responded last week.  Alan now replies:


First, I would like to thank the editors of TortsProf blog for hosting this discussion. In my view, there is no better use of a blog than to provide a forum for robust and immediate debate on important and timely topics. Kudos to Chris, Bill & Sheila for running a great site.

Next, I must thank John Goldberg & Ben Zipursky (G&Z) for taking the time to respond to my prior post. Despite their prolific output as scholars and frequent appearances as speakers and panel presenters, they consistently have answered their critics with diligence and grace. For this alone, they deserve special commendation.

But G& Z also deserve recognition for the candor of their post. In it, they both clarify points raised by their past work, and address new issues previously left unexamined. Unfortunately, their responses do not resolve the quandaries surrounding their civil recourse theory of torts. Instead, their answers only raise more questions; and these questions, in my view, only raise more doubt about the validity of their view as currently constructed.

In this post, I will outline some of the remaining conundrums. For the sake of clarity, my replies will follow each of G&Z’s responses below. I apologize in advance for the length of my reply, but big issues invite big answers.

For Rylands and abnormally dangerous activities, we accept that there is strict liability of a form that can only be categorized as “wrongs-based” if one relaxes the meaning of “wrongs” so greatly as to deprive it of meaning; as to these torts, we accept that a wrongs-based framework is incomplete.   However, we have argued that: (a) all of the other putative areas of strict liability – products, vicarious liability, trespass torts, etcetera -- are actually wrongs-based in a significant sense; (b) the Rylands et al constitute only a very small fragment of all of tort law; (c) even as to Rylands et al., they fall into a hybrid category something like promissory estoppels in contract or strict liability in criminal law, such that there were good reasons for courts to take a position that essentially abandoned a critical feature of the law in a narrowly limited area, while still counting cases as being part of that area.  

G&Z purport to offer only a descriptive or interpretive account of the tort system. They seek to explain what tort law is and does, not what it should be. In response to my first quandary, they argue that Torts is a system of wrongs because instances of true strict liability are relatively rare and tangential. This is not a new contention. They argued the same points in their article Torts as Wrongs. In my view, G&Z employ a flawed methodology (not objectively reporting the facts but subjectively and selectively manipulating them) to reach an inaccurate conclusion (that true strict liability is rarer than it actually is). I already have provided detailed explanations of both errors in prior articles (What’s Wrong With Torts as Wrongs [SSRN] and The DisTORTed Reality of Civil Recourse Theory [forthcoming Cleveland State Law Review]), so I will not elaborate on them here.

Nevertheless, two points require special emphasis. Even if true strict liability is relatively uncommon, prevalence alone is an extremely weak metric for determining its importance. The known universe consists of 75% dark energy, 20% dark matter and 5% matter. No scientist (who, like G&Z, seeks to accurately describe and explain the way things are) would dismiss matter as insignificant merely because of its rarity, and no scientific theory that excluded matter would be taken seriously. Matter possesses enormous significance because of its longevity (it’s been around since the Big Bang) and potency (it holds the power to create and sustain life). The same holds true for strict liability. According to conventional wisdom, Torts originated in medieval England from a primitive form of strict liability. The abnormally dangerous version of this theory—i.e., the one G&Z recognize as “true” strict liability—has been around for 150 years and has been adopted by virtually every state in the country. As for its potency, strict liability accounts for one-half of Torts’ bifurcated liability spectrum (which ranges from fault to no-fault) and one-third of its theoretical infrastructure (intentional torts, negligence & strict liability). It also poses the greatest threat to liberty. Unlike negligence, strict liability does not simply regulate the small details of a single act. It burdens and restricts entire categories of human activity. Given the magnitude of its impact, strict liability is a lot like capital punishment: it may not be invoked very often, but everyone always knows it’s there. Indeed, in a wrongs-based system like Torts, its existence should attract special concern. True strict liability destroys fault. When it arrives, wrongs disappear. Where it lives, wrongs die. If wrongs are vital to Torts, shouldn’t the admittedly aberrant but undeniably lethal fault-eating strict liability virus be studied and explained with even greater care and vigor, and not casually dismissed as irrelevant?

According to G&Z, much of strict liability is not antithetical to fault at all, but rather consists of wrongs cloaked in strict liability garb. If this is true, the judges who created tort law must be either unwittingly or willfully responsible for the mislabeling. Are we to believe that jurists from different states and countries intentionally set out to obfuscate the law over a period of centuries? If so, for what purpose? Is it to sow confusion and doubt, increase appeals, and surreptitiously strengthen their imprimatur on the law? Alternatively, must we assume that these same judges consistently mistook wrongs for strict liability without ever discovering their error, or the errors of their predecessors, or ever attempting to do anything about it? Experience and common sense show otherwise. Shortly after adopting strict products liability, many courts recognized that design and warning defect actions were essentially negligence cases in disguise. Rather than continue the charade, they changed the law by abolishing strict liability and permitting only theories of negligent design and warning. The Restatement (Third) of Torts: Products Liability officially eradicated the misbranding just thirty years after it began.

There is only one way to determine whether or why such misbranding occurs, or what the tort system is meant to be. It’s not by counting theories, reinterpreting words, or consulting legal commentaries. Rather, it’s by asking the judges themselves. Their answers may not all be candid, and their sample size may be relatively small (given the larger, historical context of the common law), but they alone control the law’s form and content. Unless and until G&Z tap Torts’ source, how can they claim to know its essence? It’s just as well that they’ve forgone this quest, because I doubt they’d like what they find. I suspect judges, like tort scholars, see Torts not as a unified system of wrongs hidden behind a veil of meaningless and misleading verbiage, but as a multifaceted system with diverse policy objectives and a corresponding, transparent commitment to liability without fault.


As to instrumental considerations actively shaping the nature of what the courts or legislatures are willing to count as “wrongs,” there is no reason to treat this important phenomenon as inconsistent with a wrongs-based account.  

In the articles mentioned above, I argue that instrumental considerations infiltrate all wrongs-based actions at some level, and specifically shape every element of the core wrong of negligence. G&Z agree with this observation, but argue that it is not inconsistent with the wrongs-based account of civil recourse theory. To my knowledge, G&Z have never before made this concession, and for good reason. It cannot be sustained. In fact, it seems inconsistent with much of their prior work. From their earliest scholarship, G&Z vehemently and repeatedly have argued for a relational view of duty that eschews instrumental concerns. Indeed, in their very first piece on the subject, The Moral of MacPherson, they outline three aspects of a satisfactory account of duty, including its relational basis, its relational sensitivity, and its conception as “non-instrumental.” (p. 1744). Their rejection of instrumental considerations has not been limited to the duty element. Elsewhere in the same article they generally lament that “the reduction of negligence to policy analysis threatens to drain the analytic structure from torts” (p. 1741) and specifically decry how “the collapse of ‘duty,’  ‘breach,’  and ‘proximate cause’  into policy has caused lawyers and judges basic confusion in briefing and analyzing negligence cases, as well as allocating the respective functions of judge and jury.” (p. 1741-42).

The problem for current G&Z is that past G&Z are right. Technically, courts might use tort law solely as an instrument to do private justice between the parties. In this sense, instrumentalism and a wrongs-based approach would not clash. But that is not how instrumentalism is currently conceived or applied. Today, instrumentalism means the implementation of social policy in pursuit of the public good. Insofar as public policy considers something other than the parties’ private interests, it always conflicts with a purely relational analysis. In many cases, the conflict stretches our idea of wrongs almost beyond recognition. To promote better supervision of the mentally infirm, courts subject them to an unattainable  “ordinary” standard of care, finding them negligent when they fail to comply. But this “wrong” seems far removed from common conceptions of personal fault or irresponsibility. Courts use the eggshell plaintiff rule to deter negligent conduct. But because the rule forces merely careless actors to bear responsibility for completely unforeseeable and sometimes catastrophic injuries, it hardly tracks our relational sensibilities. Other examples abound. In each situation, the law retains the nomenclature of fault, but dramatically distorts its substance. The result is something wrong-ish or wrong-like, yet also decidedly different. Loosely speaking, one could call it a wrongs-based system. But doing so, in G&Z’s own words, “relaxes the meaning of ‘wrongs’ so greatly as to deprive it of meaning.” In short, civil recourse theory has what political satirist, Stephen Colbert, calls “truthiness.” It has the attractive ring of authenticity; it just doesn’t tell the (full, actual) truth.

The right to sue does not come from having been wronged.  The right to exact a remedy is premised on having been legally wronged.  The right to sue is a procedural right afforded to those who have a good faith belief (for which they can supply some articulate basis) that they have a right to exact a remedy. 

G&Z argue that only the right to exact a remedy depends on the existence of a wrong; the right to sue, by contrast, arises from a procedural right premised on the plaintiff’s good faith belief in her right to exact a remedy. Both responses are remarkable. The first appears to contradict many of G&Z’s own past statements; the second, to my knowledge, has never appeared in their scholarship, and has never been incorporated into or reconciled with their theory of civil recourse.

Despite their disavowal above, G&Z frequently have asserted or implied that the right to sue in tort is premised on the existence of a wrong. I will offer just a few exemplary excerpts. In the 2005 article, The Constitutional Status of Tort Law, Goldberg explains that “to say tort law is a law for the redress of private wrongs is to say that it empowers a victim to seek redress from a wrongdoer because that other has acted wrongfully toward him (or persons such as him).” (p. 599)(emphasis added). Later in the same piece, Goldberg reaffirms this position, arguing that “[a] right to redress is, as Zipursky has emphasized, a legal power conferred on a victim to pursue an action against the alleged wrongdoer if she chooses.” (p. 602)(emphasis added). Three years later, in Wrongs Without Recourse, Goldberg makes the point even more directly. There he describes tort law as “a law of civil recourse—law that empowers a person victimized by conduct that is both wrongful as to her and injurious to her to bring suit against a wrongdoer and, if she prevails, to obtain recourse against the wrongdoer.” (p. 13)(emphasis added and removed). Hammering the same theme, Goldberg goes on to redefine tort law as “a scheme by which government gives victims the chance to harness the procedures and powers of the legal system as a way of getting back at their wrongdoers.” (p. 14)(emphasis added). Most recently, and unequivocally, G&Z state in Torts as Wrongs that “Torts are legal wrongs for which courts provide victims a right of civil recourse—a right to sue for a remedy.” (p. 985)(emphasis added).

Perhaps these passages simply reflect an unfortunate choice of words. But G&Z’s own arguments prevent such an interpretation. G&Z often have asserted that the tort system serves as a substitute for private vengeance or remedial self-help. Both are acts, not results. The action of pursuing revenge or self-help could conclude in any number of ways; sometimes the pursuer may obtain an acceptable remedy, while other times she may not. What is distinctive about Torts is its establishment of a peaceful and civilized alternative process to these aggressive and unsupervised modes of private action. Indeed, Goldberg says as much in the Constitutional Status article, noting that “[t]he core claim of redress theory is that tort law’s distinctiveness resides in conferring on individuals (and entities) a power to pursue a legal claim alleging that she (or it) has suffered an injury flowing from a legal wrong to her by another.” (p. 605)(emphasis added). 

So framed, civil recourse theory faces a serious dilemma. If, as G&Z have argued in the past, the right to sue in tort accrues only to victims of wrongs, then this theory is clearly inaccurate. As I pointed out in the Quandaries post, tort suits are filed before the question of wrongdoing is determined. In half the cases filed, no wrong is ever found to exist. Thus, wrongs cannot serve as the justification for the tort process. Accordingly, G&Z now contend that only “the right to exact a remedy” depends on the existence of a wrong. The right to sue, by contrast, bears no such requirement. Instead, the latter right is a mere procedural power that derives from one’s good faith belief in, and her assertion of an articulable basis for, her right to a remedy. But if this is true, G&Z’s theory, which they themselves broadly characterize as Torts as Wrongs, merely explains a small fraction of tort cases—specifically, those in which plaintiffs prove a wrong to a court or jury (or the defendant stipulates thereto)—and a small fragment of the tort system—specifically, the award and execution of the plaintiff’s remedy after she prevails. They cannot, or at least have not until their recent post, explained the justification for the tort process, which Goldberg, at least, has described as the most distinctive feature of the tort system and the “core” of their theory.

Part of the problem is that G&Z (until now) seem to construe civil recourse as a single, politically unconditioned right. This assumption contains two errors. Tort law provides not one but three recourse rights for plaintiffs, and these rights are not politically unconditioned. In The Instrumental Justice of Private Law, I identified these rights as the right to unilateral personal response, the right of state-assisted response, and the right of state-assisted redress. (p. 586). The first right gives potential or actual victims the self-help power to defend their bodies or property, or to recover property after it is taken, using privileges like self-defense and defense and recovery of property. The second right gives aggrieved parties the power to sue their adversaries in a public forum created, operated and enforced by the state; in other words, the right to sue in tort. The final right gives actual victims the power to invoke the state’s assistance in obtaining a remedy against a proven or admitted wrongdoer. As G&Z now concede, as they must, the existence of a wrong serves as a prerequisite only to the state-assisted right of redress. The other rights arise regardless of wrongs. Indeed, one can successfully assert rights to unilateral personal response or state-assisted response against others who in fact are completely innocent.

G&Z argue that wrongs serve as a kind of theoretical condition to their right to exact a remedy or my right to state-assisted redress. However, they have not considered whether that right, or any other recourse right, is politically bounded. Instead, they have made a powerful argument that the right to recourse is an inviolable requirement of due process. Goldberg, for his part, sees no basis for limiting that right, querying in Wrongs Without Recourse “why…there is reason to suppose that tort law…incorporates into its system of civil recourse a default rule against making itself available to injury victims absent some pressing need?” (p. 19).

Unfortunately for G&Z, there is such a reason, and their failure to address it is the central deficiency of their theory of civil recourse. As I explained in Instrumental Justice and amplified in my February 15, 2010 TortsProf guest post entitled On Due Process, Probable Cause, Duty and Torts, all of Tort’s recourse rights are politically limited by rights to civil defense. I present this thesis in full in my forthcoming book The Right to Civil Defense in Torts, so I’ll only frame the argument here. Any action that interferes with the liberty of another is presumptively wrongful. Every citizen has right of defense against presumptively wrongful action. Because all tort actions always interfere with the liberty of the parties being sued, every tort action is presumptively wrongful at the outset, and every tort defendant enjoys a right of civil defense against it.

To rebut this presumption, the person seeking recourse must have probable cause to believe that the party acted upon is a potential or actual tortfeasor. The probable cause requirement varies by context, though it always exists in some form. In cases of unilateral personal response, the actor’s right to self defense or defense of property depends on her reasonable suspicion that the other threatens imminent harm to her body, land or goods. In cases of state-assisted response—i.e., tort suits—the plaintiff must establish three types of probable cause to proceed with her action. She must show that (1) the defendant probably (factually) acted as alleged, (2) the alleged act probably (substantively) is tortious, and (3) she (the plaintiff) probably (procedurally) has standing to sue (i.e., she was owed a duty or debt of care that she is personally entitled to enforce). The factual requirement mirrors the state’s burden in a criminal prosecution. The substantive and procedural burdens, however, are unique to torts. Substantive probable cause is necessary because torts generally are not codified, but are insufferably dynamic and fact-sensitive. Procedural probable cause is required because no private citizen holds inherent power to control or regulate the conduct of another. In cases alleging intentional torts or strict liability activities—where the conduct in question is presumptively suspect and carries an automatic duty that runs to everyone—the substantive and procedural requirements are satisfied by the mere factual allegation that the defendant engaged in a suspect act that caused the plaintiff harm. By contrast, in negligence actions—where fault is circumstantial and the duty of care is limited—the plaintiff must affirmatively satisfy each and every one of these requirements. As I’ve indicated elsewhere, I don’t believe such probable cause issues are properly addressed in modern negligence cases, but that’s a matter for another day.

Seen in this way, probable cause emerges as the key element connecting and balancing the parties’ respective rights. The plaintiff wants recourse against the defendant and the defendant wants to stop her civil assault. Because the plaintiff starts out as an unjustified aggressor, the law protects the defendant with a right of civil defense. That right forces the plaintiff to show probable cause for her action, thus justifying her right to proceed. If she satisfies this burden, the presumption of unjustified aggression is removed and she earns the right to state-assisted response. However, if she fails to show probable cause, her action remains presumptively suspect and stands vulnerable to the defendant’s defensive right of preemption.

Echoing the basic probable cause component of this scheme, G&Z finally acknowledge in their post that the right to sue in tort depends not on wrongs, but on the plaintiff’s good faith belief in and articulable basis for her claim. What they fail to address—as I have done above—is why these nonwrongs-based facts justify so much of Torts. Equally troubling, they have yet to consider how their new-found justification, whatever it turns out to be, squares with their otherwise wrongs-centric theory of civil recourse. Given the prodigiousness of G&Z’s switch, it is hard to know what their next move will be. But one thing is certain. Unless and until civil recourse theory recognizes and accounts for the right to civil defense, it will continue to provide an incomplete and ultimately misleading image of our tort system.

Challenge 3 is largely responded to by Response 2, above.  We must add, however, that the legal system recognizes procedural rights to defend oneself against those asserting a right to exact a remedy.  There is no inconsistency in recognizing both sorts of rights.  The state does not generally mean to put impediments there for those who have a right to exact a remedy.  It means to put protections there for those who are subject to demands by those alleging they have such a right.  Obviously, our system aims to design the procedural rights to sue and the procedural protections from liability in such a way that they facilitate the provision of remedies for those who were in fact wronged and only for those.   Affirmative defenses like statutes of limitation and immunities and assumption of risk will require a variety of other explanations, which we (and others, such as Jason Solomon) have undertaken to provide.

Anticipating the arguments above, G&Z here acknowledge (as they must) that the legal system contains “procedural rights to defend oneself” but contend that “there is no inconsistency in recognizing both sorts of rights.” On the first point, despite their acknowledgment, G&Z have devoted almost no attention to these defensive rights in their scholarship, apparently viewing them as an afterthought. Indeed, the importance of these rights is so low they earn no place in the title to G&Z’s “civil recourse” theory of torts.  As to the second point, G&Z are correct, as I have explained above, that there is no inconsistency in the coexistence of the rights to civil recourse and civil defense within the tort system. But G&Z do not, and I believe cannot, explain the consistency between these rights and their theory of civil recourse. So long as that theory continues to filter all of tort law through the lens of civil recourse, it cannot be redeemed simply by adding explanations of Tort’s defensive rights. Because Torts is, at bottom, a system that reconciles the competing rights and liberties of parties in conflict, it can best be described by a theory of liberal (liberty maximizing) justice (giving citizens the liberty they deserve by weighing and balancing their respective interests). As it now stands, civil recourse theory, which focuses exclusively on the plaintiff’s right to recourse, completely misses Tort’s essence. Rather than seeing tort law as a competitive enterprise, G&Z view it as an institution of entitlement and empowerment for one party only. It’s a lot like describing football as a set of rules that empower one team to execute plays to enter the end zone of another. It ignores the combative conflict—the glorious mix of offense and defense—that makes it a sport. In football, they say that defense wins championships. In tort theory, the absence of defense almost certainly ensures defeat.

On the issue of empowerment, I questioned how G&Z could describe the tort system as empowering victims to rectify wrongs when tort law and procedure both create impediments to the plaintiff’s ability to get redress. Their reply is that Torts doesn’t mean to create impediments for actual victims; rather, it only seeks to inhibit the undeserving. But what Tort means to do and what it actually does are two different things. When a lawsuit is filed, no one knows which claims are meritorious and which are not. As I noted above, the state must view the plaintiff’s aggressive civil attack against the defendant as a potential infringement of the defendant’s liberty. Thus, the law imposes the same impediments against all claimants in order to protect the defendant’s rights. If the state viewed matters differently—seeing the plaintiff’s recourse right as superior to the defendant’s defensive right—it presumably would not block the plaintiff’s path to recovery. Instead, it would offer plaintiffs incentives to file suit. As a second-best measure, it might force defendants to plead and prove their innocence. But the tort system does neither. Instead, it forces plaintiffs not only to plead and prove the elements of a relatively small set of preapproved causes of action, but also to hurdle a seemingly endless array of procedural obstacles along the way. Each substantive and procedural requirement impedes their ability to move forward. One misstep at any point and the plaintiff’s right to recourse can be summarily reneged. Metaphorically speaking, tort law withholds the plaintiff’s lost liberty behind a series of locked doors, and then forces her to argue to the key-master (the state) why each door should be opened to allow her to retrieve it. If this is empowerment, it’s a very odd way of lending a hand.

The state is only supposed to take sides in tort suits in the way that courts take sides in adjudication generally.  It is – at least at a general level -- part and parcel of thinking someone has legal rights not to be mistreated in various ways that the legal system will not typically remain indifferent to a proven claim that such a legal right by one person was infringed by another, but will entertain a demand for recourse by one whose legal right so infringed against the infringer.  So long as the state continues to prohibit non-civil responsive conduct by those who have been wronged or mistreated or whose rights have been infringed, the state’s being willing to act responsively, in civil litigation, to such a demand strikes me as more consistent with the state maintaining a stance of non-arbitrariness or neutrality as between private persons than: (A) prohibiting non-civil  responsive conduct by victims, and: (B) remaining passive in the face of civil demands for redress (assuming that many tortuous wrongs are not actionable except for civil tort actions).   The latter stance strikes me as arbitrarily favoring injurers over victims.

G&Z premise civil recourse theory on the due process requirement that citizens receive a political recourse right in return for their foregone natural rights to self-help. Above, they argue that this recourse right enjoys primacy because a citizen’s “legal rights not to be mistreated” require the legal system not to “remain indifferent to a proven claim that such a legal right by one person was infringed by another.” The problem is, tort claims when filed are not “proven” so the state does not know if one person’s legal right has been infringed by another. G&Z simply assume that every tort action begins as a glorified act of self-vindication. But this assumption is patently false. Every tort action actually begins as what it seeks to redress: an aggressive assault on liberty. With the filing of a complaint, the plaintiff drags the defendant into court and forces her to attend proceedings, answer questions, and generally account for her conduct. If the defendant fails or refuses to respond, she may be required to pay a penalty even if she did nothing wrong. If she chooses to participate in the action, the assault against her only intensifies—disrupting her employment, draining her financial resources, subjecting her to public obloquy, invading her privacy, and causing her anxiety and emotional turmoil. Whether she wins or loses her case, the defendant always emerges from litigation worse off than she was before.

If the plaintiff’s attack were strictly interpersonal, it would be significant enough to warrant close and careful scrutiny. But the assault of civil litigation is far more momentous. Although private parties initiate tort actions, the state is neither disinterested in nor indifferent to these proceedings. Instead, it is an active accomplice in the plaintiff’s assault, lending her its fora, facilities, administrators, laws, procedural rules, decisionmakers, and even its coercive authority. Thus, the burdens wrought by civil litigation are not purely private, but are largely attributable to state action.

The state’s participation in civil litigation dramatically increases its potentially damaging effects. In fact, it poses a serious threat to due process. While this notion of due process is the same one invoked by G&Z on behalf of tort plaintiffs, its affinity for civil defendants is actually far stronger. Ever since its birth in the Magna Carta, due process has prohibited states from using its powers and institutions to arbitrarily restrict the liberty of its citizens. Though this protection typically is applied to criminal defendants who may be subject to false arrest and prosecution, theoretically it may extend to any form of government overreaching, including state-assisted deprivations of liberty caused by the institution of civil litigation.

This is not to say that due process does not support a right to civil recourse. G&Z’s arguments here are persuasive. My point is to show that this right does not stand alone. It is, and always has been, accompanied by a prior right of civil defense, which serves as its perfect counterweight. Just as the state must permit people to redress their wrongs in court, it also must forbid their entry without probable cause to harass, coerce, oppress, or harm their neighbors. Because the wrongs-based theory of civil recourse ignores this fundamental truth, it is itself fundamentally wrong.


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