Fordham University School of law THis Research paper 49 June 2004 The Philosophy of Tort Law Between the esoteric and the banal Professor of law ( Forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding William Edmundson, eds. 2004) This paper can be downloaded without charge from the Social Science Research Network electronic library http://ssrn.com/abstract=555705
Fordham University School of Law Research Paper 49 June 2004 The Philosophy of Tort Law: Between the Esoteric and the Banal Benjamin Zipursky Professor of Law (Forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding & William Edmundson, eds. 2004) This paper can be downloaded without charge from the Social Science Research Network electronic library: http://ssrn.com/abstract=555705
Philosophy of Tort Law: Between the Esoteric and the banal amin C. Zipursky Professor of law Fordham University forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding William Edmundson, eds. 2004) The string of words, " Philosophy of tort law " may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, law is among the most practical and least high-falutin' areas of law. Tort law deals with car accidents medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up The decision to write this chapter indicates that I do not share the perspective articulated above And yet the question raised -"Is philosophy of tort law intellectually unmotivated? -provides a valuable backdrop for thinking about the topic. i shall suggest in what follows that the subject actually covers a number of different kinds of inquiry, each kind motivated by a set of practical or intellectual concerns. By probing these diverse motivations we will not only address the reasons why there is such a subject(philosophy of tort law), we will also get a better sense of the substance of ongoing debates within tort law, and we will have greater reason to hope that further development in philosophy of tort law will lead to valuable contributions to our legal system and academic culture. Rather than setting forth several leading tort theories as if the subject had an uncontested subject matter over which different scholars had different theories, we shall look at several different kinds of questions that have led to the development of philosophically rich answers Philosophy/tort questions will be presented in three sections. The first section pertains to problems within the development of the black-letter law of torts within the twentieth century, which have spurred the development of philosophical tort theories. The second looks to broader debates within legal theory in which tort theory has been a singularly important domain. Third, and finally, there are debates within moral and political philosophy that have again displayed tort theory as a tort law has emerged from, addressed, pushed forward, and been shaped by, developments nallor 3? domain within which particularly rich philosophical ideas have been generated. Philosophical work these debates Pushed by problems in Law and policy A. Negligence versus strict liability In a number of different domains of tort law during the twentieth century, judges, lawyers, legislators, and academics engaged in a debate over whether companies and individuals should be held strictly liable for the injuries they cause. Workers' compensation for workplace injuries, no-fault automobile insurance for car accidents in some jurisdictions, and strict liability for manufacturing defects in products are prominent examples of domains in which the advocates of strict liability have prevailed. A wide variety--probably the vast preponderance--of areas of accident law remain negligence-based but there has been and continues to be a significant range of areas in which debates between negligence principle and a strict liability principle remain energetic and nuanced. This includes, for example, liability for suboptimal designs and unknown hazards in products, liability for automobile accidents and a significant number of dangerous activities
Philosophy of Tort Law: Between the Esoteric and the Banal Benjamin C. Zipursky Professor of Law Fordham University [forthcoming in BLACKWELL GUIDE TO PHILOSOPHY OF LAW AND LEGAL THEORY, Martin Golding & William Edmundson, eds. 2004)] The string of words, “Philosophy of tort law” may seem like a random conjunction of academic topic nouns selected from columns in a word game. If the phrase has a comical ring, it is because tort law is among the most practical and least high-falutin’ areas of law. Tort law deals with car accidents, medical malpractice, and defective lawn mowers, matters seemingly far from the celestial concerns of the philosopher. And so, like the lobster ice cream sold in a sea-faring tourist town, the existence of philosophy of tort law as a subject may seem to be proof that people will swallow just about anything that can be served up. The decision to write this chapter indicates that I do not share the perspective articulated above. And yet the question raised -- “Is philosophy of tort law intellectually unmotivated?” -- provides a valuable backdrop for thinking about the topic. I shall suggest in what follows that the subject actually covers a number of different kinds of inquiry, each kind motivated by a set of practical or intellectual concerns. By probing these diverse motivations we will not only address the reasons why there is such a subject (philosophy of tort law), we will also get a better sense of the substance of ongoing debates within tort law, and we will have greater reason to hope that further development in philosophy of tort law will lead to valuable contributions to our legal system and academic culture. Rather than setting forth several leading tort theories as if the subject had an uncontested subject matter over which different scholars had different theories, we shall look at several different kinds of questions that have led to the development of philosophically rich answers. Philosophy/tort questions will be presented in three sections. The first section pertains to problems within the development of the black-letter law of torts within the twentieth century, which have spurred the development of philosophical tort theories. The second looks to broader debates within legal theory in which tort theory has been a singularly important domain. Third, and finally, there are debates within moral and political philosophy that have again displayed tort theory as a domain within which particularly rich philosophical ideas have been generated. Philosophical work in tort law has emerged from, addressed, pushed forward, and been shaped by, developments in all of these debates. I. Pushed by Problems in Law and Policy A. Negligence versus strict liability In a number of different domains of tort law during the twentieth century, judges, lawyers, legislators, and academics engaged in a debate over whether companies and individuals should be held strictly liable for the injuries they cause. Workers’ compensation for workplace injuries, no-fault automobile insurance for car accidents in some jurisdictions, and strict liability for manufacturing defects in products are prominent examples of domains in which the advocates of strict liability have prevailed. A wide variety -- probably the vast preponderance -- of areas of accident law remain negligence-based, but there has been and continues to be a significant range of areas in which debates between a negligence principle and a strict liability principle remain energetic and nuanced. This includes, for example, liability for suboptimal designs and unknown hazards in products, liability for automobile accidents, and a significant number of dangerous activities
While the strict-liability-versus-negligence debate has benefited from major, and in some cases, central, contributions from economists, historians, and other analysts within the social sciences, it has from its inception presented a significant philosophical aspect. At first appearance, one might suppose that the philosophical question at issue has been: ought a person who has caused injury to another person be held liable for the cost of compensating the victim's injury, regardless of whether the one who caused injury acted in a faulty manner? In fact, this bald normative question has not been the primary target of philosophical analysis. Rather, the primary philosophical question has been one that presupposes a setting within legal doctrine, and an interpretive slant: to the extent that the imposition of liability under Anglo-American tort law embodies a set of legal principles that displays a defensible normative structure, does that normative structure permit the imposition of liability without fault, and ifso, when? The results of this broad inquiry fall into a spectrum running from strict liability to negligence Richard Epstein's straightforwardly titled"A Theory of Strict Liability"(1973)is a libertarian case for strict liability in accident law, by contrast, Ernest Weinrib's corrective justice theory advocates a fault principle across the board, and Arthur ripstein largely shares this position. Several views fall in between--including those of George Fletcher, Gregory Keating, Jules Coleman, and Stephen Perry 1. Epsteins strict-liability corrective justice theo Richard Epstein has taken the view that, just as each person who infringes upon another's property ight is required by the law to compensate the property owner for the infringement, so each who causes injury to another's body is also liable to the other for the costs of the injury inflicted (at least where there is not a specific showing of excuse or justification)(Epstein 1973: 203-04). The purpose of this body of law is not to provide compensation to accident victims, nor to deter wrongdoers(although it does, and not unimportantly, have those consequences); the purpose of the law is to protect each body is as precious as one's real property, so invasions of bodily integrity trigger a right o rate or person's holdings against the infringements of others. Whether those infringements are deliberate or negligent or without fault is largely irrelevant, just as it generally is for property infringements. Ones compensation The key to the interpretive success or failure of Epstein's account is whether he can recast what would otherwise seem to be a conception of fault in many cases as an aspect of the causation requirement; Stephen Perry's widely respected critique of Epstein(based on the idea that he must smuggle normative notions into his conception of cause), suggests that cannot.(Perry 1989: 404-12) From a normative point of view, the view requires adherence to an almost visceral Nozickian libertarianism--a view to which Epstein appears to remain loyal, albeit for a different set of reasons than he initially endorsed 2. Weinrib and Ripstein: Fault-based conceptions of corrective justice theory Weinrib, like Epstein, embraces a corrective justice framework in which restoring an equilibrium that was disturbed by tortious conduct is a central feature of tort law(Weinrib 1995). Unlike Epstein however, Weinrib openly states that the equilibrium disturbed (and then ideally restored)is not simply the status quo distribution of entitlements. It is, Weinrib argues, a"normative equilibrium, " which is disturbed only where people have acted in a manner that they were not entitled to act, outside of their rights. Where the defendant has so acted and the conduct ripens into an invasion of the plaintiff s right, that invasion is a disturbance that needs to be rectified when the tort law obligates the tortfeasor defendant to pay the plaintiff, it is making sure that the rectification occurs and normative equilibrium is restored; things are set right, so far as possible. Because the trigger of liability is an action in breach of duty, or outside of a defendants right, this is not strict liability. The defendant has injured the plaintiff, but the liability for the injury is not generated by that fact alone, but by the wrongfulness of
2 While the strict-liability-versus-negligence debate has benefited from major, and in some cases, central, contributions from economists, historians, and other analysts within the social sciences, it has from its inception presented a significant philosophical aspect. At first appearance, one might suppose that the philosophical question at issue has been: ought a person who has caused injury to another person be held liable for the cost of compensating the victim’s injury, regardless of whether the one who caused injury acted in a faulty manner? In fact, this bald normative question has not been the primary target of philosophical analysis. Rather, the primary philosophical question has been one that presupposes a setting within legal doctrine, and an interpretive slant: to the extent that the imposition of liability under Anglo-American tort law embodies a set of legal principles that displays a defensible normative structure, does that normative structure permit the imposition of liability without fault, and if so, when? The results of this broad inquiry fall into a spectrum running from strict liability to negligence. Richard Epstein’s straightforwardly titled “A Theory of Strict Liability” (1973) is a libertarian case for strict liability in accident law; by contrast, Ernest Weinrib’s corrective justice theory advocates a fault principle across the board, and Arthur Ripstein largely shares this position. Several views fall in between -- including those of George Fletcher, Gregory Keating, Jules Coleman, and Stephen Perry. 1. Epstein’s strict-liability corrective justice theory Richard Epstein has taken the view that, just as each person who infringes upon another’s property right is required by the law to compensate the property owner for the infringement, so each who causes injury to another’s body is also liable to the other for the costs of the injury inflicted (at least where there is not a specific showing of excuse or justification) (Epstein 1973: 203-04). The purpose of this body of law is not to provide compensation to accident victims, nor to deter wrongdoers (although it does, and not unimportantly, have those consequences); the purpose of the law is to protect each person’s holdings against the infringements of others. Whether those infringements are deliberate or negligent or without fault is largely irrelevant, just as it generally is for property infringements. One’s body is as precious as one’s real property, so invasions of bodily integrity trigger a right to compensation. The key to the interpretive success or failure of Epstein’s account is whether he can recast what would otherwise seem to be a conception of fault in many cases as an aspect of the causation requirement; Stephen Perry’s widely respected critique of Epstein (based on the idea that he must smuggle normative notions into his conception of cause), suggests that cannot. (Perry 1989: 404-12) From a normative point of view, the view requires adherence to an almost visceral Nozickian libertarianism -- a view to which Epstein appears to remain loyal, albeit for a different set of reasons than he initially endorsed. 2. Weinrib and Ripstein: Fault-based conceptions of corrective justice theory Weinrib, like Epstein, embraces a corrective justice framework in which restoring an equilibrium that was disturbed by tortious conduct is a central feature of tort law (Weinrib 1995). Unlike Epstein, however, Weinrib openly states that the equilibrium disturbed (and then ideally restored) is not simply the status quo distribution of entitlements. It is, Weinrib argues, a “normative equilibrium,” which is disturbed only where people have acted in a manner that they were not entitled to act, outside of their rights. Where the defendant has so acted and the conduct ripens into an invasion of the plaintiff’s right, that invasion is a disturbance that needs to be rectified. When the tort law obligates the tortfeasor defendant to pay the plaintiff, it is making sure that the rectification occurs and normative equilibrium is restored; things are set right, so far as possible. Because the trigger of liability is an action in breach of duty, or outside of a defendant’s right, this is not strict liability. The defendant has injured the plaintiff, but the liability for the injury is not generated by that fact alone, but by the wrongfulness of
the defendants injuring of the plaintiff. Hence, fault is essential to liability in tort, under Weinrib's view. This is not to say that insurance or administrative law frameworks could not justifiably be created purporting to apply tort law, and could not appeal to the supposed normative bases of tort lay udiciary that would impose strict liability, but such structures could not properly come from within the Arthur Ripstein's powerful book, Equality, Responsibility and the Law (1998), takes Kantian strands in Weinrib and weaves them into a contemporary, constructivist, Rawlsian defense of tort law His basic idea is that security and liberty are goods that it is the domain of law to shape and constrain for citizens on equal terms. Tort law does this by declaring that when people act in a manner that takes more liberty than a generalized scheme of liberty could permit-- when they unreasonably risk harm to others, for example --then the risked harm, if it comes to pass, will be their responsibility. In that manner, tortious conduct in effect creates a domain of responsibility for injuries caused Because it is essential to Ripstein s view that the injury only becomes the defendant's responsibility under the tort law because he or she acted beyond the limit of liberty designated negligence or fault is critical to liability 3. Fletcher's reciprocity theory Two pioneers of the philosophical study of tort law --George Fletcher and Jules Coleman--have offered accounts that expressly leave room for both strict liability and negligence within tort law Fletchers 1972 article, "Fairness and Utility in Tort Theory, asserts that a single principle accounts for both strict liability and negligence: a principle that the creation of nonreciprocal risks generates liability for the realization of those risks. In risky activities that are widely engaged in and are taken as part and parcel of modern life in a given community--such as driving--each of us accepts a certain degree of risk as a form of vulnerability that we must tolerate in light of our own production of similar risks to others. Therefore, when those risks are realized the generator of realized risks need not bear the liability. However, when people do not use reasonable care in engaging in those activities, they generate a nonreciprocal risk and must therefore take responsibility if the risk is realized in an injury That is negligence-based liability. Similarly, if people engage in abnormally risky activities, the reciprocity of risk does not apply, and they should be held liable for the results of those realized risks That is strict liability. Recent work by Gregory Keating has expanded Fletcher's theory in illuminating ways(Keating 1996, Keating 1997; Keating 2001) 4. Mixed corrective justice theories: Coleman and perry I Coleman has offered at least two quite different models aimed at capturing both strict liability and negligence. In his early work, Coleman depicted the tort law as a system fundamentally aimed at annulling unjustifiable losses(which, he argued, is consistent with strict liability)( Coleman 1976).At the same time, Coleman recognized that the legal system may choose particular modes of rectifying those losses, and some modes(e.g, a fault principle) may serve other social goals or implement other principles.(Coleman 1983) Those crafting the tort system presumably need to decide which principles they think should be treated as primary if they want to ascertain the propriety of strict liability A second incarnation of Coleman's thinking --which displays a stimulating conversation wi Stephen Perry's work--is found in Risks and Wrongs(Coleman 1992). Like both Perry and Weinrib, Coleman urges a corrective justice view that treats plaintiffs and defendants in an interlocked relationship, within which their rights and duties are correlative. Tort liability is imposed where defendants have a duty of repair running to the plaintiff, and they have this duty of repair where they are responsible for the plaintiffs injury. They are responsible for injuries where they have violated a right not to be injured tortiously. For the most part, such rights are correlative to duties not to injure another wrongfully. To this extent, they are negligence-based. However, Coleman also suggests that some rights are defined such that infringement can occur without wrongdoing; land rights are a good
3 the defendant’s injuring of the plaintiff. Hence, fault is essential to liability in tort, under Weinrib’s view. This is not to say that insurance or administrative law frameworks could not justifiably be created that would impose strict liability, but such structures could not properly come from within the judiciary purporting to apply tort law, and could not appeal to the supposed normative bases of tort law. Arthur Ripstein’s powerful book, Equality, Responsibility and the Law (1998), takes Kantian strands in Weinrib and weaves them into a contemporary, constructivist, Rawlsian defense of tort law. His basic idea is that security and liberty are goods that it is the domain of law to shape and constrain for citizens on equal terms. Tort law does this by declaring that when people act in a manner that takes more liberty than a generalized scheme of liberty could permit -- when they unreasonably risk harm to others, for example -- then the risked harm, if it comes to pass, will be their responsibility. In that manner, tortious conduct in effect creates a domain of responsibility for injuries caused. Because it is essential to Ripstein’s view that the injury only becomes the defendant’s responsibility under the tort law because he or she acted beyond the limit of liberty designated, negligence or fault is critical to liability. 3. Fletcher’s reciprocity theory Two pioneers of the philosophical study of tort law -- George Fletcher and Jules Coleman -- have offered accounts that expressly leave room for both strict liability and negligence within tort law. Fletcher’s 1972 article, “Fairness and Utility in Tort Theory,” asserts that a single principle accounts for both strict liability and negligence: a principle that the creation of nonreciprocal risks generates liability for the realization of those risks. In risky activities that are widely engaged in and are taken as part and parcel of modern life in a given community -- such as driving -- each of us accepts a certain degree of risk as a form of vulnerability that we must tolerate in light of our own production of similar risks to others. Therefore, when those risks are realized, the generator of realized risks need not bear the liability. However, when people do not use reasonable care in engaging in those activities, they generate a nonreciprocal risk and must therefore take responsibility if the risk is realized in an injury. That is negligence-based liability. Similarly, if people engage in abnormally risky activities, the reciprocity of risk does not apply, and they should be held liable for the results of those realized risks. That is strict liability. Recent work by Gregory Keating has expanded Fletcher’s theory in illuminating ways (Keating 1996; Keating 1997; Keating 2001). 4. Mixed corrective justice theories: Coleman and Perry ]Coleman has offered at least two quite different models aimed at capturing both strict liability and negligence. In his early work, Coleman depicted the tort law as a system fundamentally aimed at annulling unjustifiable losses (which, he argued, is consistent with strict liability) (Coleman 1976). At the same time, Coleman recognized that the legal system may choose particular modes of rectifying those losses, and some modes (e.g., a fault principle) may serve other social goals or implement other principles. (Coleman 1983) Those crafting the tort system presumably need to decide which principles they think should be treated as primary if they want to ascertain the propriety of strict liability. A second incarnation of Coleman’s thinking -- which displays a stimulating conversation with Stephen Perry’s work -- is found in Risks and Wrongs (Coleman 1992). Like both Perry and Weinrib, Coleman urges a corrective justice view that treats plaintiffs and defendants in an interlocked relationship, within which their rights and duties are correlative. Tort liability is imposed where defendants have a duty of repair running to the plaintiff, and they have this duty of repair where they are responsible for the plaintiff’s injury. They are responsible for injuries where they have violated a right not to be injured tortiously. For the most part, such rights are correlative to duties not to injure another wrongfully. To this extent, they are negligence-based. However, Coleman also suggests that some rights are defined such that infringement can occur without wrongdoing; land rights are a good
example, for a trespass need not be negligent or wrongful. Coleman 1992: 371-74)Hence, a right w violation is either a wrongful injuring or an infringement of a predefined interest in not being injured through a certain sort of conduct and as to a particular sort of entitlement. Negligence liability is the first sort, strict liability is consistent with the second Perry grounds corrective justice in a notion of responsibility --one that he labels(following Honore)"outcome responsibility"(Honore 1988; Perry 1992) The assignment of liability in tort is, in effect, a recognition that the defendant is responsible for the plaintiff s injury. The implication of such a finding of responsibility, as a moral matter, is the recognition of a duty of conduct toward the plaintiff to rectify the injury in some manner. Perry offers a detailed analysis of the moral principle underpinning the assignment of responsibility, arguing that the notion of outcome responsibility is part and parcel of a social practice in which certain outcomes are linked to, and associated with, a person's 192390m0 orrective justice offer a prine时由2多 agency. Typically, an accidental injury is not simply within one person's agency, but within more than one person's agency. The question therefore arises as to which should be deemed responsible for the outcome, given that both are linked with it causally, and possibly both(or several)could have localized to the few who are outcome -responsible, imposing a duty of repair upon the one whom we udge most fairly bears the burden among those who are outcome-responsible(Perry 1992: 512-13) Normally, a notion that one of the parties was at fault is necessary to a judgment that that person shoul fairly bear the burden of the injury, but in a certain class of cases, the comparitive judgment may not require any actual judgment of fault(Perry 1992: 510-11). To that extent, Perry argues, a fragment of strict liability may be cogent, notwithstanding the general preference for fault 5. Revisiting the doctrinal and policy arenas It is not necessarily easy to say what the precise contributions of these philosophical accounts have been to the development of legal doctrine, but that is not to say that they have been inert. a variety of economic,political, social, and intellectual forces pushed toward strict liability in products and more generally in the 1950s through the early 1970s. Philosophical theorists of tort law at first added to this pressure, by depicting tort as aimed toward --or at least constrained by --the notion of responsibility and by analyzing responsibility in a manner that permitted strict liability. However, since Epsteins views were rejected and an analysis of responsibility in terms of fault gained prominence, philosophical and justice-based accounts of tort law have tended to support at least a strong presumption that fault or negligence is required in the theory of tort liability, with strict liability remaining a fragment of exceptions. At the same time, courts, legislatures, and tort doctrinalists have greatly retreated from the movement toward strict liability. Indeed, the American Law Institute's Restatement (Third) of products Liability has expressly advocated negligence over strict liability in both the products context and more generally, in part citing philosophical reasons. The directions of the causal link among these academic, political, and legal developments -- if there be any links -- would require much greater analysis; suffice it to say that there is no a priori reason to assume that the causal link traveled in only one direction A somewhat subtler, but perhaps even more significant effect has involved the issue of causation more than the issue of fault. During the 1970s, courts began experimenting with the relaxation of proof requirements for cause in fact and for tortfeasor identification. Hence, in the dES context, plaintiffs in jurisdictions that permit market-share liability can recover from a drug company that produced the same sort of drug that injured them, without proving that the manufacturer produced the particular brand that injured them. a spate of commentators asserted that this sort of innovation should be followed in a wide variety of tort cases, and in fact provided a more sound basis for tort law than actual doctrine. Philosophical analysts of tort law, particularly corrective justice theorists, presented an account of tort law in terms of responsibility for injuries that provided a powerful and cogent justification for the central role of causation, roughly as traditionally understood. In
4 example, for a trespass need not be negligent or wrongful. (Coleman 1992: 371-74) Hence, a rights violation is either a wrongful injuring or an infringement of a predefined interest in not being injured through a certain sort of conduct and as to a particular sort of entitlement. Negligence liability is the first sort, strict liability is consistent with the second. Perry grounds corrective justice in a notion of responsibility -- one that he labels (following Honore) “outcome responsibility” (Honore 1988; Perry 1992) The assignment of liability in tort is, in effect, a recognition that the defendant is responsible for the plaintiff’s injury. The implication of such a finding of responsibility, as a moral matter, is the recognition of a duty of conduct toward the plaintiff to rectify the injury in some manner. Perry offers a detailed analysis of the moral principle underpinning the assignment of responsibility, arguing that the notion of outcome responsibility is part and parcel of a social practice in which certain outcomes are linked to, and associated with, a person’s agency. Typically, an accidental injury is not simply within one person’s agency, but within more than one person’s agency. The question therefore arises as to which should be deemed responsible for the outcome, given that both are linked with it causally, and possibly both (or several) could have foreseen the outcome (Perry 1992: 509). Our notions of corrective justice offer a principle of distribution localized to the few who are outcome-responsible, imposing a duty of repair upon the one whom we judge most fairly bears the burden among those who are outcome-responsible (Perry 1992: 512-13). Normally, a notion that one of the parties was at fault is necessary to a judgment that that person should fairly bear the burden of the injury, but in a certain class of cases, the comparitive judgment may not require any actual judgment of fault (Perry 1992: 510-11). To that extent, Perry argues, a fragment of strict liability may be cogent, notwithstanding the general preference for fault. 5. Revisiting the doctrinal and policy arenas It is not necessarily easy to say what the precise contributions of these philosophical accounts have been to the development of legal doctrine, but that is not to say that they have been inert. A variety of economic, political, social, and intellectual forces pushed toward strict liability in products and more generally in the 1950s through the early 1970s. Philosophical theorists of tort law at first added to this pressure, by depicting tort as aimed toward -- or at least constrained by -- the notion of responsibility and by analyzing responsibility in a manner that permitted strict liability. However, since Epstein’s views were rejected and an analysis of responsibility in terms of fault gained prominence, philosophical and justice-based accounts of tort law have tended to support at least a strong presumption that fault or negligence is required in the theory of tort liability, with strict liability remaining a fragment of exceptions. At the same time, courts, legislatures, and tort doctrinalists have greatly retreated from the movement toward strict liability. Indeed, the American Law Institute’s Restatement (Third) of Products Liability has expressly advocated negligence over strict liability in both the products context and more generally, in part citing philosophical reasons. The directions of the causal link among these academic, political, and legal developments -- if there be any links -- would require much greater analysis; suffice it to say that there is no a priori reason to assume that the causal link traveled in only one direction. A somewhat subtler, but perhaps even more significant effect has involved the issue of causation more than the issue of fault. During the 1970s, courts began experimenting with the relaxation of proof requirements for cause in fact and for tortfeasor identification. Hence, in the DES context, plaintiffs in jurisdictions that permit market-share liability can recover from a drug company that produced the same sort of drug that injured them, without proving that the manufacturer produced the particular brand that injured them. A spate of commentators asserted that this sort of innovation should be followed in a wide variety of tort cases, and in fact provided a more sound basis for tort law than actual doctrine. Philosophical analysts of tort law, particularly corrective justice theorists, presented an account of tort law in terms of responsibility for injuries that provided a powerful and cogent justification for the central role of causation, roughly as traditionally understood. In
combination with a number of other intellectual and political forces, it would appear that the principled defense of causation has seriously stalled the efforts of enterprise liability revisionists To summarize: legal scholars and courts seem to be near consensus on the view that to assign responsibility for a defendant without deeming its conduct to be either a prima facie wrong or an extraordinary taking of a risk runs against the grain of the principles embedded in the tort law, and therefore disfavored unless there are particularly forceful reasons of policy or equity for doing so Hence, there is strict liability for ultrahazardous activities--those involving extraordinary risks-and there is strict liability in worker's compensation as a policy-motivated legislative choice during the inception of the last century, and there is strict liability on a restitutionary basis in a narrow range of therwise there is not and to the extent that fo liability has move toward strict liability, scholars have favored a return to the negligence-based idea, unless particularly strong policy-based justifications can be demonstrated At a broader level, the richness of philosophical theories of tort law over the past few decades should not seem either mundane or rarified Questions about the basis of our tort liability push lawyers and citizens to think philosophically. Inquiry into the basic concept of responsibility and what role fault plays within it cuts deeply into both moral and political theory, and is hardly banal; exploration and modification of the contours of liability on the border of negligence and strict liability raise the bar on the importance of crafting intelligent answers to such questions, an activity that is hardly inert or esoterIc B Concepts within tort doctrine Commentators on tort theory --even those who recognize an important link between theory and ope questions in legal doctrine -typically assume that philosophy of tort law is largely exhausted by grand philosophical theories of the domain of tort law. It would be odd if this were true in torts, for it is not true in those areas of law where philosophical work has been most prominent -constitutional law and criminal law. In those areas, while grand theories such as fundamental rights theory or retributivism have been prominent, philosophers and philosophically oriented legal scholars have probed a variety of scope of judicial review the role of framers' intent in constitutional interpretation. Similarly, iions narrower questions In constitutional law, for example, important scholarship has focused on que such as(simply to name a few )the nature and scope of free speech, the right to privacy, the prop criminal law, scholarship has focused not only on the justification of punishment, but on(for example) the nature of criminal intent, the distinction between justification and excuse, and defenses such as insanity and self-defense. See ]sc[criminal law theory. ]p[We should not expect, therefore, that theories over whether fault or strict liability is the basic principle of tort would take up the space in philosophy of tort law. And that is just what we find Philosophers and philosophically oriented scholars of tort law have provided serious and interesting work on a variety of broad but defined legal issues. Thus, for example, philosophers have investigated the nature of the cause- in-fact and the proximate cause requirements for tort liability; the meaning of the"prudent person"standard or the"reasonable care"standard in negligence law (Feldman 2000; Keating 1996), the relation between intent and knowledge in intentional torts(Finnis 1995: Sebok 2001); the concept of foreseeability(Perry 2001: 88-101); and the nature of duty in negligence law(Goldberg Zipursky 1998; Weinrib 1995), just to take a few examples. The areas are ar too numerous even to survey here, but it may be useful to explore an example of this phenomenon Like the broader debate between fault and strict liability, the theoretical issues that revolve around more defined doctrines have tended to arise out of ongoing practical debates within actual types of legal disputes that courts are trying to resolve in a coherent, just, and beneficial manner
5 combination with a number of other intellectual and political forces, it would appear that the principled defense of causation has seriously stalled the efforts of enterprise liability revisionists. To summarize: legal scholars and courts seem to be near consensus on the view that to assign responsibility for a defendant without deeming its conduct to be either a prima facie wrong or an extraordinary taking of a risk runs against the grain of the principles embedded in the tort law, and is therefore disfavored unless there are particularly forceful reasons of policy or equity for doing so. Hence, there is strict liability for ultrahazardous activities -- those involving extraordinary risks -- and there is strict liability in worker’s compensation as a policy-motivated legislative choice during the inception of the last century, and there is strict liability on a restitutionary basis in a narrow range of cases. But otherwise there is not. And to the extent that, for example, product liability has moved toward strict liability, scholars have favored a return to the negligence-based idea, unless particularly strong policy-based justifications can be demonstrated. At a broader level, the richness of philosophical theories of tort law over the past few decades should not seem either mundane or rarified. Questions about the basis of our tort liability push lawyers and citizens to think philosophically. Inquiry into the basic concept of responsibility and what role fault plays within it cuts deeply into both moral and political theory, and is hardly banal; exploration and modification of the contours of liability on the border of negligence and strict liability raise the bar on the importance of crafting intelligent answers to such questions, an activity that is hardly inert or esoteric. B. Concepts within tort doctrine Commentators on tort theory -- even those who recognize an important link between theory and open questions in legal doctrine -- typically assume that philosophy of tort law is largely exhausted by grand philosophical theories of the domain of tort law. It would be odd if this were true in torts, for it is not true in those areas of law where philosophical work has been most prominent -- constitutional law and criminal law. In those areas, while grand theories such as fundamental rights theory or retributivism have been prominent, philosophers and philosophically oriented legal scholars have probed a variety of narrower questions. In constitutional law, for example, important scholarship has focused on questions such as (simply to name a few) the nature and scope of free speech, the right to privacy, the proper scope of judicial review, the role of framers’ intent in constitutional interpretation. Similarly, in criminal law, scholarship has focused not only on the justification of punishment, but on (for example) the nature of criminal intent, the distinction between justification and excuse, and defenses such as insanity and self-defense. See ]sc[criminal law theory. ]p[We should not expect, therefore, that theories over whether fault or strict liability is the basic principle of tort would take up the space in philosophy of tort law. And that is just what we find. Philosophers and philosophically oriented scholars of tort law have provided serious and interesting work on a variety of broad but defined legal issues. Thus, for example, philosophers have investigated the nature of the cause-in-fact and the proximate cause requirements for tort liability; the meaning of the “prudent person” standard or the “reasonable care” standard in negligence law (Feldman 2000; Keating 1996); the relation between intent and knowledge in intentional torts (Finnis 1995; Sebok 2001); the concept of foreseeability (Perry 2001: 88-101); and the nature of duty in negligence law (Goldberg & Zipursky 1998; Weinrib 1995), just to take a few examples. The areas are far too numerous even to survey here, but it may be useful to explore an example of this phenomenon. Like the broader debate between fault and strict liability, the theoretical issues that revolve around more defined doctrines have tended to arise out of ongoing practical debates within actual types of legal disputes that courts are trying to resolve in a coherent, just, and beneficial manner
Let us take the example of duty"in negligence law. The meaning and nature of the"dut element in negligence law is equally inviting to the skeptic and the moralist. This is immediately evident in Holmes's famous anticipation of legal realism in" The Path of the Law(1897), where he states that: "a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; -and so of a legal right holmes the scholar was above all a tort theorist and so it is fair to take this largely jurisprudential statement as a commentary on duty in torts as well. Legal realism in torts in particular was advanced by Leon green in the early part of the twentieth century in work that expressly asserted that duty" in negligence law was largely a procedural device for shifting classes of cases to the court from the jury (Green 1928). See ]sclamerican legal realism. ]p[These theoretical statements then made their way into hornbook statements of law, and from there, they entered into the lexicon of the California Supreme Court of the 1960s and 1970s, as if they were black letter law. Essentially, Holmes's blend of realism moral skepticism, and reductive instrumentalism as attached to the pivotally important duty" in was quite real as well: large bodies of well-settled law, such as landowner liability, professional result negligence law had prevailed within the legal academy and within certain avant garde courts. The liability to third parties, emotional harm doctrine, and economic harm doctrine, as well as limitations on the duty to rescue, became targets of sustained critique purporting to display the rules as arbitrary limitations based on philosophically naive interpretations of the concept of duty In the context of a near landslide of support for a philosophical(and reductive)analysis of a central element of the main tort, negligence, it is not surprising that a philosophical opposition began to emerge. Weinrib's articles and those of several of his students began to take a harder look at the question of what role the duty element plays in negligence law. Weinrib's Kantian and Hegelian account of the correlativity of right and duty within negligence law is fundamental to his account of torts. And it is critical, on Weinrib's view, that the term"duty" refers to a relation of moral significance between two parties. Weinrib's moralization -- or remoralization--of torts anticipated a broader philosophical investigation of the meaning of"duty"within negligence law.(Weinrib 1983; Weinrib 1989; Weinrib 1995) In a series of articles, my coauthor John Goldberg and I have depicted the debate over duty as, in part, a philosophical debate over the structure of the concept of duty within certain kinds of normative systems(Goldberg Zipursky 1998; Goldberg Zipursky 2001; Goldberg Zipursky 2002). Quite apart from the interpretive question of what concept the law of negligence is best understood as displaying, there is an analytical question of whether a nonreductive conception of duty in negligence law can be articulated in such a way that it is not equivalent to the question of whether reasonable or ordinary care was used by the defendant. According to what is now the academically dominant account, to say that there was unreasonable conduct by the defendant but that there was no duty to use such care running to the plaintiff is simply to say that notwithstanding breach of duty causing injury, there shall be no right of action available to this particular plaintiff. That is because according to this conception, the only genuine obligation of conduct within negligence law is an exists as the standard of reasonable conduct, full stop. And hence, once one has concluded tha wust obligation to use due care, and this obligation does not run to any person or class of persons; it just reasonable conduct was not used, one has decided that the only genuinely duty-like aspect of the situation--the obligation to use reasonable care-- existed and was breached. If the court then turns around and says that the plaintiff must lose because there was no duty to him or her, the court can only be interpreted to mean that there is a class of cases involving a plaintiff situated a particular way and a defendant situated a particular way, which for some reason should not be actionable even where there is unreasonable conduct causing injury, and that this case belongs to that clas
6 Let us take the example of “duty” in negligence law. The meaning and nature of the “duty” element in negligence law is equally inviting to the skeptic and the moralist. This is immediately evident in Holmes’s famous anticipation of legal realism in “The Path of the Law” (1897), where he states that: “a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; -- and so of a legal right.” Holmes the scholar was above all a tort theorist and so it is fair to take this largely jurisprudential statement as a commentary on duty in torts as well. Legal realism in torts in particular was advanced by Leon Green in the early part of the twentieth century in work that expressly asserted that “duty” in negligence law was largely a procedural device for shifting classes of cases to the court from the jury (Green 1928). See ]sc[american legal realism. ]p[These theoretical statements then made their way into hornbook statements of law, and from there, they entered into the lexicon of the California Supreme Court of the 1960s and 1970s, as if they were black letter law. Essentially, Holmes’s blend of realism, moral skepticism, and reductive instrumentalism as attached to the pivotally important “duty” in negligence law had prevailed within the legal academy and within certain avant garde courts. The result was quite real as well: large bodies of well-settled law, such as landowner liability, professional liability to third parties, emotional harm doctrine, and economic harm doctrine, as well as limitations on the duty to rescue, became targets of sustained critique purporting to display the rules as arbitrary limitations based on philosophically naïve interpretations of the concept of duty. In the context of a near landslide of support for a philosophical (and reductive) analysis of a central element of the main tort, negligence, it is not surprising that a philosophical opposition began to emerge. Weinrib’s articles and those of several of his students began to take a harder look at the question of what role the duty element plays in negligence law. Weinrib’s Kantian and Hegelian account of the correlativity of right and duty within negligence law is fundamental to his account of torts. And it is critical, on Weinrib’s view, that the term “duty” refers to a relation of moral significance between two parties. Weinrib’s moralization -- or remoralization -- of torts anticipated a broader philosophical investigation of the meaning of “duty” within negligence law. (Weinrib 1983; Weinrib 1989; Weinrib 1995) In a series of articles, my coauthor John Goldberg and I have depicted the debate over duty as, in part, a philosophical debate over the structure of the concept of duty within certain kinds of normative systems (Goldberg & Zipursky 1998; Goldberg & Zipursky 2001; Goldberg & Zipursky 2002). Quite apart from the interpretive question of what concept the law of negligence is best understood as displaying, there is an analytical question of whether a nonreductive conception of duty in negligence law can be articulated in such a way that it is not equivalent to the question of whether reasonable or ordinary care was used by the defendant. According to what is now the academically dominant account, to say that there was unreasonable conduct by the defendant but that there was no duty to use such care running to the plaintiff is simply to say that notwithstanding breach of duty causing injury, there shall be no right of action available to this particular plaintiff. That is because, according to this conception, the only genuine obligation of conduct within negligence law is an obligation to use due care, and this obligation does not run to any person or class of persons; it just exists as the standard of reasonable conduct, full stop. And hence, once one has concluded that reasonable conduct was not used, one has decided that the only genuinely duty-like aspect of the situation -- the obligation to use reasonable care -- existed and was breached. If the court then turns around and says that the plaintiff must lose because there was no duty to him or her, the court can only be interpreted to mean that there is a class of cases involving a plaintiff situated a particular way and a defendant situated a particular way, which for some reason should not be actionable even where there is unreasonable conduct causing injury, and that this case belongs to that class
The analytical challenge is therefore the puzzle of explaining how there could be a formof S oligation to use due care that is not simply a duty to use reasonable care owed to no person or class of persons: why, as we have put it, it might be possible to think of duties of due care as relational in a nonquestion-begging sense. The answer offered is that it is possible to think of norms of conduct as either monadic (or simple)or dyadic(or relational). Monadic norms direct or enjoin a class of persons not to behave in a certain way (or to behave in a certain way ) Dyadic norms of conduct are norms that direct or implore a class of persons not to treat members of some class some way. It is possible to ask whether one person has violated the norm with respect to some particular person, if the norm is understood as having a dyadic structure, but not otherwise(Zipursky 1998: 61-63 ). It is possible to think of a norm of due care as a dyadic norm, not a monadic norm. Insofar as the obligation s existence is constituted by or identical with the existence of a norm, it is possible to think of an obligation to use due care as a relational obligation, an obligation that it is coherent to think is owed to a person or class of persons, and coherent to say has been violated with respect to one person but not to another. It is therefore possible to think of duties of due care as owed to persons or classes of persons(and, correspondingly, to think of a breach of the duty of due care as a breach of a duty owed to a person or a class of persons). And-so long as one can think of legal norms as directing or enjoining conduct--it is possible to conceptualize all of this without begging the question of whether the right to sue for negligence is limited by whether one is among the class of persons to whom a duty is breached Of course, even if it is possible to understand duties of care in this manner, it does not follow that tort law' s duties of due care are best understood in this manner, or that a body of law so constituted would be more desirable than what"simple duty" theorists would advocate We and others have ddressed these questions in detail elsewhere( Goldberg Zipursky 1998: 1826-42) What I wish to point out here, however, is that the question of the structure of duties is really only the beginning of a domain of philosophical debate that can and should inform ongoing legal controversies. Later in this chapter, I shall comment on the role of philosophical analysis of the concept of duty in tort to moral philosophy more broadly II. Jurisprudence and Legal T The philosophical literature on tort law has been at least as important within jurisprudence as it has within tort law itself. Broadly speaking, tort theorists have contributed to jurisprudential debates in at least two ways. The first looks to the nature of the value system to be utilized in explaining or justifying bodies of law. The second looks to the nature of the analytical process to be used in breaking down and understanding the law A F ersus utility Drawing from Mill and Bentham. Oliver Wendell Holmes Jr. thought that the measure of a legal giving teeth to the norms of prudent conduct that our society needs. Holmes's pioneering work was followed, in different ways, by doctrinalists such as Prosser and Keeton and by economic theorists such as Richard Posner(Posner 1972)and Guido Calabresi( Calabresi 1970), and, of course, by many leading courts. By the end of the 1960s, tort law as a domain in which we seek out the most commendable system for compensating accidental injury was well entrenched. Indeed, a general view of the law as aimed toward producing human happiness was flourishing in constitutional law, contracts and criminal law. This was not surprising, since utilitarianism and its offshoots had achieved extraordinary prominence in America during the twentieth century. Partly because of Holmes's leadership, and partly because of its practical importance within a quickly industrializing nation, tort law was the exemplar of the utilitarian approach
7 The analytical challenge is therefore the puzzle of explaining how there could be a form of obligation to use due care that is not simply a duty to use reasonable care owed to no person or class of persons: why, as we have put it, it might be possible to think of duties of due care as relational in a nonquestion-begging sense. The answer offered is that it is possible to think of norms of conduct as either monadic (or simple) or dyadic (or relational). Monadic norms direct or enjoin a class of persons not to behave in a certain way (or to behave in a certain way). Dyadic norms of conduct are norms that direct or implore a class of persons not to treat members of some class some way. It is possible to ask whether one person has violated the norm with respect to some particular person, if the norm is understood as having a dyadic structure, but not otherwise (Zipursky 1998: 61-63). It is possible to think of a norm of due care as a dyadic norm, not a monadic norm. Insofar as the obligation’s existence is constituted by or identical with the existence of a norm, it is possible to think of an obligation to use due care as a relational obligation, an obligation that it is coherent to think is owed to a person or class of persons, and coherent to say has been violated with respect to one person but not to another. It is therefore possible to think of duties of due care as owed to persons or classes of persons (and, correspondingly, to think of a breach of the duty of due care as a breach of a duty owed to a person or a class of persons). And -- so long as one can think of legal norms as directing or enjoining conduct -- it is possible to conceptualize all of this without begging the question of whether the right to sue for negligence is limited by whether one is among the class of persons to whom a duty is breached. Of course, even if it is possible to understand duties of care in this manner, it does not follow that tort law’s duties of due care are best understood in this manner, or that a body of law so constituted would be more desirable than what “simple duty” theorists would advocate. We and others have addressed these questions in detail elsewhere (Goldberg & Zipursky 1998: 1826-42). What I wish to point out here, however, is that the question of the structure of duties is really only the beginning of a domain of philosophical debate that can and should inform ongoing legal controversies. Later in this chapter, I shall comment on the role of philosophical analysis of the concept of duty in tort to moral philosophy more broadly. II. Jurisprudence and Legal Theory The philosophical literature on tort law has been at least as important within jurisprudence as it has within tort law itself. Broadly speaking, tort theorists have contributed to jurisprudential debates in at least two ways. The first looks to the nature of the value system to be utilized in explaining or justifying bodies of law. The second looks to the nature of the analytical process to be used in breaking down and understanding the law. A. Fairness versus utility Drawing from Mill and Bentham, Oliver Wendell Holmes Jr. thought that the measure of a legal system was its contribution to overall well-being of the community it served. The point of the law was to improve concrete human functioning. It did this by compensating those wrongfully injured and by giving teeth to the norms of prudent conduct that our society needs. Holmes’s pioneering work was followed, in different ways, by doctrinalists such as Prosser and Keeton and by economic theorists such as Richard Posner (Posner 1972) and Guido Calabresi (Calabresi 1970), and, of course, by many leading courts. By the end of the 1960s, tort law as a domain in which we seek out the most commendable system for compensating accidental injury was well entrenched. Indeed, a general view of the law as aimed toward producing human happiness was flourishing in constitutional law, contracts, and criminal law. This was not surprising, since utilitarianism and its offshoots had achieved extraordinary prominence in America during the twentieth century. Partly because of Holmes’s leadership, and partly because of its practical importance within a quickly industrializing nation, tort law was the exemplar of the utilitarian approach
But moral and political philosophy in the English-speaking world was altered in the 1950s and 1960s by the publication of important papers by John Rawls, culminating in his Theory of Justice in 1971. Rawls, of course, revitalized social contract theory and used it as a foundation from which to construct a critique of utilitarianism. Moreover, after generations of skepticism about the notion of justice, Rawls confidently offered a grand theory of justice, deploying a notion of fairness in a central role. Given that jurisprudence has historically and conceptually enjoyed a sibling- like relationship with moral and political philosophy, one would expect these changes to be reflected in legal theory In 1972, less than a year after Rawls's book, George Fletcher published a landmark article in the Harvard Law Review entitled"Fairness and Utility in Tort Theory. Fletcher expressly cited Rawls as foundation and inspiration for his ideas in the philosophy of tort law. Unlike constitutional law, where others(most notably Dworkin) had cited the significance of Rawls, and where utilitarianism was unlikely to have achieved unquestioned superiority, tort law was an area in which utilitarian theorizing igned supreme. Fletcher argued that a notion of fairness was better than a notion of utility for understanding tort law, both from an interpretive and from a normative point of view. He urged that even strict liability, which was famously advocated from a utilitarian point of view, was in fact better interpreted in terms of a notion of fairness. and he used this notion of fairness as means for casting in relief how dogmatically utility-based legal theory in America had become Fletcher's article is emblematic of a now-familiar paradigm battle between economically oriented legal theorists and deontologically oriented ones, both within torts and elsewhere. And tort law has been viewed as a field over which these two paradigms should properly do battle. Fletchers reciprocity-based approach is no longer the dominant model for the antiutilitarians in torts(corrective justice theory is); but, again, the philosophy of tort law remains the centrally contested forum within which broadly speaking utilitarian theories are challenged by nonutilitarian ones: Libertarian Strict Liability(Epstein 1973), Aristotelean Corrective Justice Theory( Gordley 1995; Stone 2001; Weinrib 996: ) Constructivist Corrective Justice Theories( Coleman 2001; Ripstein 1998); Social Contract Based Theories(Fletcher 1972; Keating 2001). To the extent that such theories have provided fertile and plausible insights into tort law and tort policy, they have fortified the plausibility of an entire paradigm of legal theorizing. This broader plane of theorizing has spread across contract, property criminal law, tax, and a variety of other areas once almost entirely dominated by the utilitarian B. Reductive instrumentalism versus conceptualism The debate described above. between utilitarian and nonutilitarian theories is related to another lega theory debate: that between instrumentalist analysis of law and legal concepts and conceptualistic analysis. The instrumentalist took the key to understanding law and legal concepts to be an appreciation of the capacity of pieces of doctrine to serve as instruments for the realization of social ends. Of course, almost all legal theorists recognize that law does serve social ends, what is distinctive about the Legal terms are purely placeholders within schemes of rules selected for their efficacy in attaining ve instrumentalists is that they aim to analyze legal concepts purely in terms of the social ends they se desired goals Examples of this sort of analysis abound within twentieth-century legal theory both inside and outside of torts. Take the example of" unconscionability within contract law. The doctrine that unconscionable contracts are unenforceable superficially appears to be a moralistic requirement that bargains that are so extremely one-sided as to be grossly oppressive or unfair should not be enforced An instrumentalist analysis would eschew this superficial interpretation--at least insofar as it aimed to resurrect some justifiable aspect of the doctrine - and read unconscionability as a doctrine aimed to presumption that freely agreed to bargains are efficient no longer holds. "Unconscionable"is just a r ferret out bargains that were made in a context of such disproportionate bargaining power that the us
8 But moral and political philosophy in the English-speaking world was altered in the 1950s and 1960s by the publication of important papers by John Rawls, culminating in his Theory of Justice in 1971. Rawls, of course, revitalized social contract theory and used it as a foundation from which to construct a critique of utilitarianism. Moreover, after generations of skepticism about the notion of justice, Rawls confidently offered a grand theory of justice, deploying a notion of fairness in a central role. Given that jurisprudence has historically and conceptually enjoyed a sibling-like relationship with moral and political philosophy, one would expect these changes to be reflected in legal theory. In 1972, less than a year after Rawls’s book, George Fletcher published a landmark article in the Harvard Law Review entitled “Fairness and Utility in Tort Theory.” Fletcher expressly cited Rawls as foundation and inspiration for his ideas in the philosophy of tort law. Unlike constitutional law, where others (most notably Dworkin) had cited the significance of Rawls, and where utilitarianism was unlikely to have achieved unquestioned superiority, tort law was an area in which utilitarian theorizing reigned supreme. Fletcher argued that a notion of fairness was better than a notion of utility for understanding tort law, both from an interpretive and from a normative point of view. He urged that even strict liability, which was famously advocated from a utilitarian point of view, was in fact better interpreted in terms of a notion of fairness. And he used this notion of fairness as means for casting in relief how dogmatically utility-based legal theory in America had become. Fletcher’s article is emblematic of a now-familiar paradigm battle between economically oriented legal theorists and deontologically oriented ones, both within torts and elsewhere. And tort law has been viewed as a field over which these two paradigms should properly do battle. Fletcher’s reciprocity-based approach is no longer the dominant model for the antiutilitarians in torts (corrective justice theory is); but, again, the philosophy of tort law remains the centrally contested forum within which broadly speaking utilitarian theories are challenged by nonutilitarian ones: Libertarian Strict Liability (Epstein 1973), Aristotelean Corrective Justice Theory (Gordley 1995; Stone 2001; Weinrib 1996;), Constructivist Corrective Justice Theories (Coleman 2001; Ripstein 1998); Social ContractBased Theories (Fletcher 1972; Keating 2001). To the extent that such theories have provided fertile and plausible insights into tort law and tort policy, they have fortified the plausibility of an entire paradigm of legal theorizing. This broader plane of theorizing has spread across contract, property, criminal law, tax, and a variety of other areas once almost entirely dominated by the utilitarian framework. B. Reductive instrumentalism versus conceptualism The debate described above, between utilitarian and nonutilitarian theories, is related to another legal theory debate: that between instrumentalist analysis of law and legal concepts and conceptualistic analysis. The instrumentalist took the key to understanding law and legal concepts to be an appreciation of the capacity of pieces of doctrine to serve as instruments for the realization of social ends. Of course, almost all legal theorists recognize that law does serve social ends; what is distinctive about the instrumentalists is that they aim to analyze legal concepts purely in terms of the social ends they serve. Legal terms are purely placeholders within schemes of rules selected for their efficacy in attaining desired goals. Examples of this sort of analysis abound within twentieth-century legal theory, both inside and outside of torts. Take the example of “unconscionability” within contract law. The doctrine that unconscionable contracts are unenforceable superficially appears to be a moralistic requirement that bargains that are so extremely one-sided as to be grossly oppressive or unfair should not be enforced. An instrumentalist analysis would eschew this superficial interpretation -- at least insofar as it aimed to resurrect some justifiable aspect of the doctrine -- and read unconscionability as a doctrine aimed to ferret out bargains that were made in a context of such disproportionate bargaining power that the usual presumption that freely agreed to bargains are efficient no longer holds. “Unconscionable” is just a
rhetorically effective label for such contracts. The propriety of refusing to enforce them has nothing to do with the superficial meaning of the term, and is really just a disguise for one of the law's means of adhering to a program of promoting efficiency. Similar examples exist through virtually all areas of the common law and constitutional law. Instrumentalism has thrived in torts as much. or more. than in other parts of the law -- famously for terms such as "proximate cause and"duty, and for fundamental principles, such as the requirement that defendant s conduct actually caused plaintiffs InJury. Instrumentalism and utilitarianism are by no means identical, even if adherence to one often accompanies adherence to the other. It is entirely possible for an instrumentalist to believe that rights and duties are not simply a matter of utility, but have a thoroughly deontological foundation, and that the legal terms and concepts are best viewed as instruments for promoting such rights and duties Justice Brennan's First Amendment decisions could be viewed in such light, for example. Conversely it is possible to think of the legal system as a whole as justified within a utilitarian framework, but to think that understanding of legal concepts requires a noninstrumentalist approach; H. L. A. Harts treatment of the criminal law arguably falls within such a description(Hart: )and from quite a different point of view, a variety of neoformalist approaches to statutory interpretation and constitutional law do so as well Ironically, philosophy of tort law has fueled the attack on instrumentalism, even though torts was probably the field in which instrumentalism enjoyed the greatest dominance. Above all, Ernest Weinrib has advanced a rich and intricate theory of tort law that is profoundly anti-instrumentalist one in which concepts play a particular role that is essentially distinct from that of promoting certall Weinrib: 1995) The jurisprudential core of his view is that the distinctive form of legal justification ends. Part of what makes tort law a form of law, on Weinrib's view, is that the concepts within it fit one another in an integrated manner, and this cluster of integrated concepts manages to realize a certain kind of normative order, rather than advancing one. The concept of a"juridical structure "within tort law, examined with great philosophical subtlety by Weinrib, suggests an entirely different model of how law gets content and meaning, if not by its role in a system aimed at promoting certain goals Among the most powerful arguments made against instrumentalism has been the"bipolarity critique"of instrumentalist accounts of tort law, an attack offered in slightly different forms by Weinrib and Coleman(Weinrib 1989: Weinrib 1995; Coleman 1988; Coleman 2001). Briefly, both of these thinkers point out that instrumentalists must view it as a contingent matter, from a normative point of that defendants in tort are presumptively required to pay an amount equal to the magnitude of the plaintiffs injury. For if the tort law is viewed as aiming at efficient deterrence, it is an entirely open question whether the correct amount will match the plaintiffs injury; conversely if it is aimed at efficient compensation. The system is a truly magnificent coincidence if it is aimed at both, and the precise magnitude of the injury from these respective parties is what would be required. By contrast, corrective justice and to tort law. to seek to dig underneath this concept in favor of finding ano inrib and Coleman have each insisted that the concept of a duty to make whole is central both independently specifiable social goal that is reached is to flush away the core of the justification of the system Weinrib has understandably been criticized for riding the pendulum too far from instrumentalism all the way to the sort of langdellian formal ism that was rejected in the early part of the last century(Rabin 1996). Whether or not that is a fair criticism, there is no doubt that Weinrib demands a level of sympathy for Hegelian and Aristotelian metaphysics that law professors cannot always muster. And yet similar ideas have emerged from Jules Coleman(Coleman 1998; Coleman 2001), Stephen Perry(Perry 1997), Martin Stone(Stone 1995; Stone 2001), and by me( zipursky 1998a; Zipursky 2000; Zipursky 2003)and by my coauthors, John Goldberg(Goldberg 1999; Goldberg
9 rhetorically effective label for such contracts. The propriety of refusing to enforce them has nothing to do with the superficial meaning of the term, and is really just a disguise for one of the law’s means of adhering to a program of promoting efficiency. Similar examples exist through virtually all areas of the common law and constitutional law. Instrumentalism has thrived in torts as much, or more, than in other parts of the law -- famously, for terms such as “proximate cause” and “duty,” and for fundamental principles, such as the requirement that defendant’s conduct actually caused plaintiff’s injury. Instrumentalism and utilitarianism are by no means identical, even if adherence to one often accompanies adherence to the other. It is entirely possible for an instrumentalist to believe that rights and duties are not simply a matter of utility, but have a thoroughly deontological foundation, and that the legal terms and concepts are best viewed as instruments for promoting such rights and duties. Justice Brennan’s First Amendment decisions could be viewed in such light, for example. Conversely, it is possible to think of the legal system as a whole as justified within a utilitarian framework, but to think that understanding of legal concepts requires a noninstrumentalist approach; H. L. A. Hart’s treatment of the criminal law arguably falls within such a description (Hart: ) and, from quite a different point of view, a variety of neoformalist approaches to statutory interpretation and constitutional law do so as well. Ironically, philosophy of tort law has fueled the attack on instrumentalism, even though torts was probably the field in which instrumentalism enjoyed the greatest dominance. Above all, Ernest Weinrib has advanced a rich and intricate theory of tort law that is profoundly anti-instrumentalist. (Weinrib: 1995) The jurisprudential core of his view is that the distinctive form of legal justification is one in which concepts play a particular role that is essentially distinct from that of promoting certain ends. Part of what makes tort law a form of law, on Weinrib’s view, is that the concepts within it fit one another in an integrated manner, and this cluster of integrated concepts manages to realize a certain kind of normative order, rather than advancing one. The concept of a “juridical structure” within tort law, examined with great philosophical subtlety by Weinrib, suggests an entirely different model of how law gets content and meaning, if not by its role in a system aimed at promoting certain goals. Among the most powerful arguments made against instrumentalism has been the “bipolarity critique” of instrumentalist accounts of tort law, an attack offered in slightly different forms by Weinrib and Coleman. (Weinrib 1989; Weinrib 1995; Coleman 1988; Coleman 2001). Briefly, both of these thinkers point out that instrumentalists must view it as a contingent matter, from a normative point of view, that defendants in tort are presumptively required to pay an amount equal to the magnitude of the plaintiff’s injury. For if the tort law is viewed as aiming at efficient deterrence, it is an entirely open question whether the correct amount will match the plaintiff’s injury; conversely, if it is aimed at efficient compensation. The system is a truly magnificent coincidence if it is aimed at both, and the precise magnitude of the injury from these respective parties is what would be required. By contrast, Weinrib and Coleman have each insisted that the concept of a duty to make whole is central both to corrective justice and to tort law. To seek to dig underneath this concept in favor of finding an independently specifiable social goal that is reached is to flush away the core of the justification of the system. Weinrib has understandably been criticized for riding the pendulum too far from instrumentalism all the way to the sort of Langdellian formalism that was rejected in the early part of the last century (Rabin 1996). Whether or not that is a fair criticism, there is no doubt that Weinrib demands a level of sympathy for Hegelian and Aristotelian metaphysics that law professors cannot always muster. And yet similar ideas have emerged from Jules Coleman (Coleman 1998; Coleman 2001), Stephen Perry (Perry 1997), Martin Stone (Stone 1995; Stone 2001), and by me (Zipursky 1998a; Zipursky 2000; Zipursky 2003) and by my coauthors, John Goldberg (Goldberg 1999; Goldberg