TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, August 24, 2022

Two by Keating

Greg Keating has posted two pieces to SSRN.  First, Form and Function in Tort Theory.  The abstract provides:

Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.

Second, Enterprise Liability.  The abstract provides:

In American tort law “enterprise liability” is a response to the profound transformation of the social world brought about by modern industrial, technological society. In this world, most accidental harm is not the random byproduct of isolated individuals going about their idiosyncratic existences in civil society. Instead, the harms and wrongs characteristic of modern social life are the inevitable, and predictable, byproduct of the basic productive activities of modern life. Enterprise liability expresses the idea that responsibility for these harms and wrongs should be absorbed by the activities that engender them, and then be distributed across all those who benefit from those activities —not left on the individuals who happen either to inflict or to suffer them. This chapters seeks to explains the institutional logic of, and normative justification for, enterprise liability, and to show how and why it constitutes a distinctive regime of responsibility.

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