Friday, January 20, 2012
Thursday, January 19, 2012
Wednesday, January 18, 2012
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.