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Tuesday, November 20, 2012

Keating on Tort Theory

Greg Keating (USC) has posted to SSRN Is the Role of Tort to Repair Wrongful Losses?.  The abstract provides:

For more than a generation, corrective justice theories of tort have been the principal alternative to economic theories. Corrective justice conceptions claim (as Jules Coleman, a leading corrective justice theorist puts it) that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses.” This thesis encapsulates a powerful critique of the economic theory of tort. That theory is committed to a relentlessly forward-looking conception of the institution. On the economic account, tort is a mechanism for inducing actors whose activities put others at risk of injury to minimize the combined costs of accidents and their prevention. It does so by placing responsibility for repairing past losses on those actors who are the “cheapest cost-avoiders.” The “cheapest cost-avoiders” are those who are in the best position to minimize the combined costs of accidents and their prevention. Because past costs can no longer be affected, this criterion looks forward and only forward. It therefore misconceives the point of tort adjudication. Tort adjudication looks backwards and assigns responsibility for repairing harm wrongly done. Tort adjudication holds tortfeasors liable to those they have wronged for the losses that they have wrongly inflicted because they are responsible for having wrongly inflicted those losses on those victims.

Corrective justice theory thus articulates a powerful critique of the economic theory of tort. That critique, however, spawns its own misconception of tort law. Corrective justice theory puts the cart before the horse and misconceives tort as an essentially remedial institution. Tort is a law of wrongs, not just a law of redress for wrongs. Logically and normatively, obligations of repair are dependent on primary obligations not to wrong others in the first instance. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary responsibilities. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Primary and remedial responsibilities form a unity in which primary responsibilities have priority. Corrective justice is thus an essential, but subordinate, aspect of tort. The heart of tort law is constituted by primary obligations to avoid committing various wrongs.

--CJR

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